Friend's Husband illegally inside US

[KG0411 0]

So a friend of mine recently approached me with a dilemma she has on her shoulder. She asked me since I had just received my greencard, but we have different situations. I thought I'd ask here for her.

So she said that she just got married a couple weeks ago to her husband that had illegally entered the US with his parents as a child. She herself is a US citizen so she was wondering how to go about processing immigration with this situation. Will he automatically be deported if they file for a petition? Because he entered as a child without proper knowledge, do they take that into consideration?

Thanks for any advice on her behalf.

[brownskinned 5]

Im not sure but I think he'll get deported. I know someone in texas who entered there as a child with his parents illegally from mexico.. they all were deported.

[KG0411 0]

Really? So it doesn't matter if he married a us citizen?

[amesa 9]

When I married my ex, he was illegal...overstayed his visa.

Because we were then married (now, this is back in 2001/2002), we consulted a lawyer who said we could fix it. I remember completing the I-130 for him. I don't remember if there was an overstay fee included in the price, but it may be possible to allow him to stay since he is now married to a US citizen.

I would highly recommend that your friend talk to a good lawyer. This is not something to handle alone.

Good luck!

[mjaskiew 8]

OK, you need to ask them and make sure what exactly their situation is. Have they entered the US on visa, but stayed longer, or have they entered without inspection ie. just crossing the border somewhere in the desert?

First scenario - his wife can probably sponsor him for a green card and his overstay will be forgiven. Second scenario - not allowed to apply for a green card in the US. has to leave the country, which automatically triggers a 10 year ban. Will have to file I-130, and the I-130 will be denied at the embassy at which point they will have to file waivers to overcome the ban.

[Brother Hesekiel 2,235]

This is a rather straight forward situation.

The US Government realizes that children have no say in where parents take them, thus illegal presence in the US is not being recorded before the child becomes an adult, which is at age 18. Thereafter the "it's my parents' fault" defence becomes invalid and the now adult is expected to do the right thing: leave the US.

Since the bar for overstay is not triggered before the now adult has overstayed for 180 days, that leaves him with half a year (until age 18-1/2) to depart and enter again legally. I usually advice people in this situation to be a good student, get a High School Diploma, then apply at the local community college as an international student (they know exactly what that implies), get an I-20 form issued, leave for Mexico, and then apply for an F-1 visa and return with inspection. Even if the student then drops out of college a week later, he still had entered legally and is eligible to adjust status when getting married to a US citizen.

In the case in question, the husband apparently did not enter or reenter the country with inspection; thus he is not eligible for AOS. To become legal, he would have to leave the US at which point he would trigger the 10-year bar. It would require an I-601 waiver which would require a top-notch waiver attorney to pull this off successfully. I wholeheartedly recommend Laurel Scott for this job. She's the best there is, and she's a great person as well. Laurel can be reached here: http://scottimmigration.net/

Edited March 3, 2011 by Just Bob

[Haarp425 26]

Really? So it doesn't matter if he married a us citizen?

Yes.

However, if he qualifies for the section 245(i), he won't have to leave the USA and he can adjust here in the USA.

Under 245(i), illegal immigrants who pay a $1,000 fine can pursue an AOS if they qualify for a Green Card through a family member (spouse, parent, child, or sibling) or through an employer. An undocumented alien who is 245(i)-eligible and who is currently married to a U.S. citizen can become a resident immediately, as can the parent or minor child (under 21) of a citizen.

A person who had a properly filed and approvable when filed labor certification or visa petition filed (with fee and fine $1000) on their behalf after January 14, 1998, but on or before April 30, 2001,qualifies for the benefits of §245(i) but only if they were physically present (legal or illegal) in the U.S. on the date of enactment of the new law (December 21, 2000).

If a labor certification or visa petition was properly filed with fee and fine $1000 and approvable when filed, you are entitled to the benefits of 245(i) even if the application/petition was never approved, was withdrawn, or the petitioner ceases to exist.

There is no expiration. Once you qualify for benefits under 245(i), your eligibility never expires, and there is no restriction on the number of times an alien may properly seek to adjust status.

The deadline for filing under the section originally passed in 1996. Then, on December 21, 2000, law was passed that extended that deadline until April 30, 2001. To date, that deadline still stands. If deadline is extended again by the POTUS, it will be a relief for those Aliens seeking AOS.

To be eligible for Section 245(i) adjustment of status under the LIFE Act, you must:

Beneficiary of a

- Form I-130 immigrant visa petition ("Petition for Alien Relative")

- Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker")

- Form I-360 ("Petition for an Amerasian Widow(er), or Special Immigrant")

- Form I-526 ("Petition for an Alien Entrepreneur")

Any of those forms must have been filed with USCIS on or before April 30, 2001 (either received by USCIS or, if mailed, post marked on or before April 30, 2001).

OR

Beneficiary of an application for labor certification filed with the Department of Labor (DOL) according to DOL rules on or before April 30, 2001.

Lastly, the alien must have been physically present (legal or illegally) in the USA on December 21, 2000, if the qualifying visa petition or labor certification application was filed after January 14, 1998.

If no one has applied for him under Section 245(i), then he must leave the USA to adjust status.

[belinda63 2,981]

Sounds like no one has applied for him since he is just no inquiring about how to remain in the US. Suggest you visit immigrate2us for more specific advice. He will have to leave the US and will initially be denied a spousal visa. The I-601 waiver can be filed after the denial (same day I believe).

[Harpa Timsah 13,258]

Yes.

However, if he qualifies for the section 245(i), he won't have to leave the USA and he can adjust here in the USA.

Under 245(i), illegal immigrants who pay a $1,000 fine can pursue an AOS if they qualify for a Green Card through a family member (spouse, parent, child, or sibling) or through an employer. An undocumented alien who is 245(i)-eligible and who is currently married to a U.S. citizen can become a resident immediately, as can the parent or minor child (under 21) of a citizen.

A person who had a properly filed and approvable when filed labor certification or visa petition filed (with fee and fine $1000) on their behalf after January 14, 1998, but on or before April 30, 2001,qualifies for the benefits of §245(i) but only if they were physically present (legal or illegal) in the U.S. on the date of enactment of the new law (December 21, 2000).

If a labor certification or visa petition was properly filed with fee and fine $1000 and approvable when filed, you are entitled to the benefits of 245(i) even if the application/petition was never approved, was withdrawn, or the petitioner ceases to exist.

There is no expiration. Once you qualify for benefits under 245(i), your eligibility never expires, and there is no restriction on the number of times an alien may properly seek to adjust status.

The deadline for filing under the section originally passed in 1996. Then, on December 21, 2000, law was passed that extended that deadline until April 30, 2001. To date, that deadline still stands. If deadline is extended again by the POTUS, it will be a relief for those Aliens seeking AOS.

To be eligible for Section 245(i) adjustment of status under the LIFE Act, you must:

Beneficiary of a

- Form I-130 immigrant visa petition ("Petition for Alien Relative")

- Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker")

- Form I-360 ("Petition for an Amerasian Widow(er), or Special Immigrant")

- Form I-526 ("Petition for an Alien Entrepreneur")

Any of those forms must have been filed with USCIS on or before April 30, 2001 (either received by USCIS or, if mailed, post marked on or before April 30, 2001).

OR

Beneficiary of an application for labor certification filed with the Department of Labor (DOL) according to DOL rules on or before April 30, 2001.

Lastly, the alien must have been physically present (legal or illegally) in the USA on December 21, 2000, if the qualifying visa petition or labor certification application was filed after January 14, 1998.

If no one has applied for him under Section 245(i), then he must leave the USA to adjust status.

This only applies if the person had a relative petition filed before 2001, which is not the case for this person. Bob is correct, there is no way to adjust status, have to leave country and deal with the ban. Good luck to them.

[razzyjohn 0]

This is not something she handle alone.she gotta hire a good lawyer..The case looks complicated to me.

[dolphin1 5]

I feel sorry for those children who were brought here illegally. They grow up and then they face deportation to a place they hardly know about. Best luck for them.

[Aztec&Taino 144]

When I married my ex, he was illegal...overstayed his visa.

Because we were then married (now, this is back in 2001/2002), we consulted a lawyer who said we could fix it. I remember completing the I-130 for him. I don't remember if there was an overstay fee included in the price, but it may be possible to allow him to stay since he is now married to a US citizen.

I would highly recommend that your friend talk to a good lawyer. This is not something to handle alone.

Good luck!

But that situation is very different because even though your ex had overstayed, he did have a visa at one point and he could adjust status from this visa. The problem with the people who entered without a visa is that they have no status to adjust from; in a legal viewpoint they are not here and should not be here. I am afraid the OP's friend would need to consult a good immigration lawyer, but she will definitely need to file the I-130 and be ready to file for a waiver, too.

[Boiler 43,715]

I feel sorry for those children who were brought here illegally. They grow up and then they face deportation to a place they hardly know about. Best luck for them.

They face deportation from day 1, illegal presence only accrues from the age of 18.

We all have our lives influenced by the choices of our parents, for good and for bad.

I see Mexico mentioned, the OP did not mention Mexico. If all he has against him is a single illegal entry and he is Mexican then his trip home should only be a few days. So in some respects much better than somebody going through a normal CR1.

Mexico is particularly easy, the lawyer mentioned above gives a money back guarantee, do not see those very often.

Edited March 4, 2011 by Boiler

[Sergi9 110]

They face deportation from day 1, illegal presence only accrues from the age of 18.

We all have our lives influenced by the choices of our parents, for good and for bad.

I see Mexico mentioned, the OP did not mention Mexico. If all he has against him is a single illegal entry and he is Mexican then his trip home should only be a few days. So in some respects much better than somebody going through a normal CR1.

Mexico is particularly easy, the lawyer mentioned above gives a money back guarantee, do not see those very often.

What Bob said, and even if he is not from Mexico, the circumstances of being brought here as a child with no other issues is a relatively easy case to overcome, well not "easy" but with a good hardship waiver packet and excellent evidence of a bona-fide marriage its a pretty good shot. The sooner they file the I130 the better if he is young it helps he tried to do the right thing for the discretion part of the decision.

Sooner rather than later, so they don't have to deal with deportation issues.

[Sergi9 110]

So a friend of mine recently approached me with a dilemma she has on her shoulder. She asked me since I had just received my greencard, but we have different situations. I thought I'd ask here for her.

So she said that she just got married a couple weeks ago to her husband that had illegally entered the US with his parents as a child. She herself is a US citizen so she was wondering how to go about processing immigration with this situation. Will he automatically be deported if they file for a petition? Because he entered as a child without proper knowledge, do they take that into consideration?

Thanks for any advice on her behalf.

No "automatic" deportation on filing. ICE priorities are not US Citizen family members which was reiterated just a couple days ago, see ICE website for memo. In any case even if he was picked up there is a chance they would not detain him or deport him but defer action which would confer no benefits but it would prevent him from having consequences of deportation.

Not sure what the 245i discussion was here? They haven't filed anything hence the they file will they get deported question (how could the parents who entered illegally have petitioned for him they are in the same boat? I guess if he had a sibling over 21 at the time they entered and they petitioned before 2001 but nothing in the post indicated that was the case.)

Edited March 9, 2011 by Sergi9