Help! Is it possible to apply for AOS for my undocumented husband?

[Hypnos 6,576]

By the way lifetime bars usually apply to certain crimes and not to simply entering the country illegally, even if more than once.

You could not be more wrong, and do not understand how a 9C bar works.

[subwayguy 100]

You could apply for a waiver but have to prove extreme hardship should him not be granted a green card. But again they could just say the couple could move and live in Mexico.

Edited July 23, 2014 by subwayguy

[subwayguy 100]

And what to you is extreme hardship may not be the case for USCIS. Your back pain is still gonna be there even if he stays. If he's taking care of you,they could tell you that he could take care of you in Mexico too. You have to present them a case where moving to Mexico is practically not possible for you, and it is inhumane for you to separate. For example , if a same sex couple were married in the US, it would be an extreme hardship if the foreign spouse has to go back to let's say Saudi Arabia or Ecuador , because they punish gays and it is impossible to obtain same sex spouse immigration benefits.

Another example , if would be an extreme hardship if the USC who is receiving VA benefits has to move abroad with foreign spouse. Or if the USC has under aged children from previous marriage.

[southcoast 27]

You have to speak to an immigration lawyer to be certain, but I happen to understand that he may be able to adjust his status. If you are a US citizen you can apply for a waiver to the ban. Also you have to prove with much more convincing evidence than other couples that your marriage is legit and not for the purpose of getting him a green card. If you speak to an immigration lawyer they will give you the best route. Being here illegally doesn't by itself ban you from the U.S so don't listen to other people's hateful bs. My dad came here with another guy's passport and got caught when entering the country because the guy had an outstanding warrant, he told the truth, spent 3 months in a detention center and was still able to get sponsored by my mother. Why? Because what they really care about is that the marriage is legit for all intents and purposes and you just have to convince them of that by all ways necessary. According to my mom it only cost her $1000, this was back in 1994 so prices have gone up. If my dad was able to get a green card after coming in with fake papers and getting caught, your case should be easier, but consult a lawyer to take the safest route.

The prior poster's comments weren't "hateful BS". When your father adjusted in 1994 he did it under a program which allowed illegal entrants the opportunity to adjust. The fine was $1000.00. The law has changed a lot since 1994, and 245i (the section at issue) has been gone since April of 2001.

[Ning 619]

He entered without inspection. He was removed from the country. He entered the US again and is still here. He has no status in the US. He has never been legally admitted. Therefore, at some point, he will have to leave the US. She can file the I-130 and the I-601a waiver but he will have to be processed for his visa outside the US. He cannot adjust status as he has no status to adjust.

And the law regarding a second entry after deportation says that he might have a life-time ban with no waiver available for at least 10 years. Again not enough details to say if this applies or not.

This is 100% exactly what happened in case I know of that mirrors this situation that Belinda has described. The guy tried to re enter after deportation and now lives in Mexico with a lifetime ban. They paid a U S lawyer 4,000 dollars but there was nothing that could be done.

[Ian H. 207]

He didn't enter with a US passport because otherwise I'm sure he would have faced a permanent bar for falsely claiming citizenship. I believe he came in with a Dominican passport of a guy that looked liked him or he may have changed the picture. This was back in 1994 so the passports then had an actual picture attached. However, the case we are talking about here is that of someone who entered the country illegally twice, not with fake papers or the like. He may be subject to the 10 year ban and may not be able to adjust status, but it isn't impossible. The IJ have discretion as to what constitutes extreme hardship, they have to look at the overall situation. In any case just because he has his papers denied doesn't mean he should leave. Like I said before if I were him I would just wait for the reform, it's bound to happen sooner or later. I'm sure there are plenty of people in the same situation that have chosen to do just that. By the way could we stop comparing my dad's case to theirs? I was simply making a point before.

A lot of this depends upon dates so lets not get confused here...Im not a lawyer...I was responding to a particular post...

I put some references from immigrate2us and Laurel Scotts website to clarify this....I was responding to the person saying that since it was easy for their father to get a greencard after using false papers, then it would be easy in the OP case also...that is misinformed.....see below....

Entering without inspection after recently being deported will get you a ban that can not be waived for various numbers of years....

At this time, and since late 1996....Impersonation of a US Citizen, to any govt agency for any purpose, even trying to vote...WILL get you a lifetime ban with NO waiver possible.....EVER....

This includes using a false US passport or someone else's passport, a false BC, or verbally claiming to be a USC, or even getting waived through at the border....

Now...Prior to 9/30/2016....it was considered just misrep and could be waived....must be your dads case...good...

So...at the time your father did it the law was different and you could get a waiver as at that time it was considered same as misrep....

Yes, there is a 601waiver possible for many types of misrep...but not anymore for false claims to US Citizenship... gets you a lifetime ban with no waiver possible....

Some bans "simple from entering the country illegally" can NOT be waived for several years such as illegal presence for 1 year or more (after 04/01/1997) after a deportation.....

9C: EWI after Unlawful Presence or Removal

If a person has been unlawfully present for more than a year after April 1, 1997 and subsequently enters or attempts to enter without being inspected, the person is not only inadmissible under INA §212(a)(9)©(i) , but is ineligible to apply for a waiver for ten years from the date of next departure. Likewise, if the person has been removed or departs under an outstanding order for removal including prior to April 1, 1997, and subsequently enters or attempts to enter without inspection after April 1, 1997, the person is inadmissible under INA §212(a)(9)©(i)(ll) and ineligible to apply for a waiver for ten years from the date of next departure. It is very important to be mindful of this ground of inadmissibility due to the unavailability of a waiver for ten years from the date of next departure.

See below....from Immigrate2US.

WHAT "COUNTS" AS A FALSE CLAIM TO US CITIZENSHIP AND WHAT CAN BE DONE TO FIX IT?


COMMON WAYS TO FALSELY CLAIM US CITIZENSHIP:

• Using a US passport
• Using a US birth certificate
• Verbally claiming to be a US citizen
• Registering to vote

LESS COMMON WAYS TO FALSELY CLAIM US CITIZENSHIP:

• Checking the US Citizen option on an I-9 or any other forms, government related or not
• Being "waved through" at a Port of Entry / Someone in a group claiming to be a US citizen and the officer assumes everyone is a US citizen

THE BAD NEWS:

There is no immigrant waiver available for false claims to US citizenship. It is a permanent ban.


EXCEPTIONS:


FALSE CLAIMS OF USC PRIOR TO SEPT 30, 1996:

This situation is treated differently because the law related to fraud/misrepresentation/false claims changed on that date due to the 1996 US Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA 1996) enacted on September 30, 1996, which is the last time there was major immigration law reform.

According to the AFM (Adjudicator's Field Manual) a false claim of US citizenship made before that date is treated as a regular fraud/misrep inadmissibility. This means that first, the false claim had to be made for an immigration benefit to trigger an admissibility, and second, although it's a lifetime ban, there is a waiver available immediately.

If you know or believe you made a false claim prior to September 30, 1996 it's essential that you talk to a knowledgeable and trustworthy attorney about your case before making any conclusions.

Get a lawyer...its going to a be long haul...maybe you dont fit the criteria...maybe you do.

[belinda63 2,981]

The IJs have no discretion when it comes to the LAW, they have to follow it. He won't go before an IJ, he will go before a consular officer at the embassy of the country he applies for the visa at. They also have no discretion in disregarding the LAW. If he did what I think he did he has a life-time ban with no waiver available for 10 years. That is the law and no judge or CO can issue a visa or green card in violation of the LAW.

He could continue to live in the US illegally and hope for immigration reform (which has been discussed for many, many, many years and still has not happened) while fearing detention and deportation and working illegally, driving illegally, etc. They could move to another country and live together. There are many maybes but currently the LAW applies and no one can over-ride the LAW.

[Ian H. 207]

Of course they do, you apparently don't know how judicial discretion works. Yes they HAVE to follow the law or at least look like it. If for example, you go in for a visa interview and the consul for whatever reason didn't like you, they technically could deny you and "claim" that you didn't prove the bona fides of your relationship, which have to be to the satisfaction of the officer in question. There is no objective way to determine the bona fides of a marriage, the consul that interviewed my dad was convinced the marriage was legit when he saw the pictures of my brother and I, especially my little brother who is identical to my father. My mother had no tax returns, no joint property, bank accounts, none of that stuff. Don't think by the way that just because a couple has children that they would make it easier because that's not always the case. I am trying to make the point that if the consul so wishes to grant him a green card based on little evidence he can do so as long as it's to his satisfaction, and that is the law. FYI, since they were planing to do an AOS it's obvious that he would most likely face an IJ because they would realize he has no status and order him removed. If they are able to get a waiver the IJ has discretion to hold his deportation pending voluntary departure or qualifying under some other right. There was this case in the news about this same sex couple where the spouse was here illegally and the IJ put his deportation on hold because of DOMA. Don't talk about the law as if it's written in stone because it isn't and not only can it be bent but there are plenty of loopholes.

The IJs have no discretion when it comes to the LAW, they have to follow it. He won't go before an IJ, he will go before a consular officer at the embassy of the country he applies for the visa at. They also have no discretion in disregarding the LAW. If he did what I think he did he has a life-time ban with no waiver available for 10 years. That is the law and no judge or CO can issue a visa or green card in violation of the LAW.

He could continue to live in the US illegally and hope for immigration reform (which has been discussed for many, many, many years and still has not happened) while fearing detention and deportation and working illegally, driving illegally, etc. They could move to another country and live together. There are many maybes but currently the LAW applies and no one can over-ride the LAW.

[belinda63 2,981]

Done here. OP hasn't come back and not going to argue about how judges can't ignore the law.

[Boiler 43,730]

There are loopholes and there are certainly options, the 9c may or may not apply.

Too little information.

But if he goes for a Consulate interview and he is 9c then the only way for it to not apply is by mistake.