Amnesty for Illegal Spouse but left the country?

[Boiler 43,397]

Yes they can and maybe

[Jawaree 717]

Is this your friend and the great concern ...hmm

why the sham marriage comment, the forum helps ppl

to follow rules and get legal, but will not help or

promote that which is not positive from either side

Edited December 21, 2014 by Jawaree

[Ian H. 207]

I think the reason they may not be worried is because she probably plans to cross the border again. I'm not sure, but I have heard that sometimes illegal immigrants leave to visit family members and such and come back. That's probably it. She would still be entering the country illegally though, so if she gets caught, she would be deported.

[Ian H. 207]

They are able to get a GC, it's just much harder. If the person was in deportation or removal proceedings then they have to prove with clear and convincing evidence that the marriage is legit. Of course I don't know what they consider clear and convincing. In this case however, I don't think the OP's friend's wife was in proceedings, she was just undocumented. Or was she actually in proceedings?

I didn't think an undocumented person who was already facing deportation could marry a USC and get a green card that way. Is that possible now or wouldn't that just lead to many sham marriages solely for green cards?

Edited December 21, 2014 by Ian H.

[KiwiBird 132]

I'm not sure if she was actually in the proceedings or not. I just heard she was 'facing deportation'. I didn't ask past that.

And yes, Jawaree, this is for a friend of mine. The reason for the great concern is because she is married to a family member of mine. I know this forum helps people immigrate the legal way. Check my signature. It was a long (LEGAL) process for me as the part outlined in my signature wasn't even half of it. My husband and I started as an I-129F form that got held up and ended up with me having to enlist the help of my local congresswoman to move it along. It was a painful, expensive, and torturous process.

The reason for the 'sham marriage' comment is because my husband and I DID do it the legal way and when we hear of people avoiding immigrating the legal way, it's like a slap in the face to us. We spent loads of money to wait for our forms to be processed, and had to 'prove' we were really going to get married within 90 days just for him to join me here in the USA. So to have people come here illegally and stay, it really is a slap in the face. To avoid the laws of immigration and then get married to avoid being deported is hurtful and makes us angry.

However, he is family and she is a friend of mine. I like her as a person and I understand coming here as a child was not her fault. They came to me and told me about their situation because they knew I had dealt with USCIS for quite a while. However, they chose to leave the country anyway. I do not know why, as I really don't know how she intends on coming back in. Unless she has AP and didn't say so, I don't believe she can. Hence why I was asking here.

So, Jawaree, I understand where you are coming from, but please do not question me or my motives. I am torn because am passionate about how I feel about illegal immigration now that I've been through the heartache that is 'legal immigration'... and also because I am talking about my family and my friend. Thanks for your reply.

[JimVaPhuong 4,863]

I didn't think an undocumented person who was already facing deportation could marry a USC and get a green card that way. Is that possible now or wouldn't that just lead to many sham marriages solely for green cards?

It depends on what you mean by "undocumented". Everything depends on how she entered the US. If she entered with a visa and overstayed then adjustment of status is possible. If she crossed the border without being admitted by an immigration officer then adjustment of status isn't possible. When an alien is referred to as "undocumented" then the meaning is usually that they entered the US without inspection; e.g., they crossed the border illegally.

In order to adjust status an alien must have some form of immigration status to adjust from. There's also a general requirement that they have maintained that status since arriving in the US, but that requirement is waived for an immediate relative of a US citizen. Someone who crossed the border illegally never had any form of immigration status, so they have no means to adjust status. They have to leave the US and reenter with valid status first. Leaving after a year or more of unlawful presence triggers a 10 year ban on returning. That ban needs to be overcome with a waiver, which is far from a sure thing.

For a long time, many people who had entered without inspection refused to leave, even though they had become eligible to apply for an immigrant visa, because there was no way to be sure they'd get a waiver of the 10 year ban. They could leave and end up getting stuck outside the US, with no other option than to wait out the ban or try sneaking back across the border again. Obama tried to address this with the provisional waiver program. This program, which has been in effect since March of 2013, allows an alien who is an immediate relative of a US citizen, but who requires a waiver for unlawful presence, to apply for the waiver without leaving the US. They still need to leave the US in order to attend an immigrant visa interview at the US consulate in their country, but they won't incur a ban on leaving because their waiver has been pre-approved.

I presume when you say "facing deportation" you mean merely that she was subject to deportation if caught. Things become a lot more complicated if removal proceedings had already been initiated against her. If she was out of status (i.e., she entered with a visa but her period of authorized stay had expired) then she would have been able to apply for adjustment of status after marrying a US citizen, but USCIS is required to presume that the marriage is a sham because it occurred after removal proceedings had begun. Being approved for adjustment of status in those circumstances is dramatically more difficult. If she entered without inspection then marrying a US citizen would have changed nothing. Her removal proceedings would have continued as if nothing had happened.

I think the salient point here is that Obama didn't wave his magic wand and legalize a bunch of illegal aliens with a stroke of his pen. He directed DHS to create the program. They're still working on that. Once they've finished then they'll start accepting applications. An alien would have to apply and be approved under the new program before they'd be able to apply for advance parole, and they'd need advance parole before they could leave the US knowing that they would be permitted to reenter.

Before you can draw any conclusions, you need to find out what, if anything, they've done with USCIS up until now. Did her husband ever submit an I-130 immigrant visa petition for her? If so, did they ever submit an I-601A provisional waiver application? Assuming these applications were submitted and approved, and the other bureaucratic processing required for them was also completed (affidavit of support, visa application, etc.) then it's possible she could attend an immigrant visa interview at the US consulate in her home country while she's abroad. If approved, she'd reenter the US with an immigrant visa, and receive a green card shortly after entering.

Another possibility would be if she applied for and was approved for deferred action under DACA (you said she entered as a child), and applied for and was approved for advance parole before leaving the US.

Given that her husband is a relative of yours, if either of the above scenarios applied then I have a strong suspicion you would have heard something about it. It's more likely they just heard the word "amnesty" being tossed around by the news media in reference to Obama's executive action, and presumed all had been forgiven. If that's the case then they will be in for a rude shock when they try to return to the US.

[KiwiBird 132]

I don't know if she came here by just crossing the border (no status) or just overstayed a visa as a child with her parents and never left (out of status). I never asked. When the topic came up among family, it was more like "Hey, you know his girlfriend? She's getting deported, so they are getting married." So I think deportation proceedings had already started. But that was last year when they got married and nothing had happened thus far... so I don't know. I always believed that getting married to a USC when you're getting deported wouldn't change anything so I was shocked I had heard nothing since then. I don't ask because I figure it's kind of rude. ("Hey, so remember how your wife was gonna be deported..? How's that going?")

I don't know if they filed any paperwork with USCIS at all. I imagine I would have heard something about it since they did speak to me about some immigration stuff back last year before they got married. But when I had said, "Marrying someone doesn't stop deportation." they dismissed me and waved me off.

I'll keep you guys posted, but again, I'm really not sure how she expects to get back!

[Boiler 43,397]

So anybody's guess.

[Ian H. 207]

Is it possible that she had DACA already and you didn't know? If she came here as a child and met all the other requirements she probably does have AP. I don't think that she would risk not being allowed reentry just because. They must have some sort of assurance that she will be let back inside the country so it's perfectly possible that she is protected under the DACA.

[KiwiBird 132]

That's entirely possible. She did come here as a child, so DACA is possible. Are now-adult DACA individuals at risk of deportation? (Curious why deportation would have been brought up at all if she were safe-guarded the entire time.) Something about the entire situation just does not make sense to me. Then again, I went through all the paperwork and filing for my husband and THAT didn't make sense to me either!

[Boiler 43,397]

If she got into serious criminal issues she might be at risk, but so would a LPR.

She may not have filed for DACA at the time you talked to her.

[_Paul&Jesica_ 70]

Just a random question, but it's not for me. A friend of mine (USC) is married to an undocumented spouse. I believe she was brought here when she was really young by her parents. She was facing deportation when they got married on American soil.

Since Obama has announced amnesty for illegals, they have gone on vacation to her home country. Would she be able to get back in the country since she has left willingly? I'm curious how that works. I'm worried she won't be able to get back. But then again, maybe she knows something I don't.

Ignoring the issues around a possible ban, I am curious on what passport she is traveling on. She wouldn't have a US passport as she is not a USC, so I am guessing it is from her original country. However, how did keep it renewed, maybe through some consular outreach? Also, is she from a visa-waiver country? If she is, then she might be able to return. However, if she she needs a visa to enter, she won't be allowed back in without the appropriate visa, which it seems she won't have.

[Boiler 43,397]

I have renewed my passport in the US, some countries make it difficult if you are out of status. However the normaal countries with large numbers of citizens in the US without status do not.

Even if from VWP country she would not be eligible to use if which is not to say it has not happened.

[jxn 86]

Ignoring the issues around a possible ban, I am curious on what passport she is traveling on. She wouldn't have a US passport as she is not a USC, so I am guessing it is from her original country. However, how did keep it renewed, maybe through some consular outreach? Also, is she from a visa-waiver country? If she is, then she might be able to return. However, if she she needs a visa to enter, she won't be allowed back in without the appropriate visa, which it seems she won't have.

She presumably got a passport at her country's local consulate in the U.S.

[JimVaPhuong 4,863]

That's entirely possible. She did come here as a child, so DACA is possible. Are now-adult DACA individuals at risk of deportation? (Curious why deportation would have been brought up at all if she were safe-guarded the entire time.) Something about the entire situation just does not make sense to me. Then again, I went through all the paperwork and filing for my husband and THAT didn't make sense to me either!

If she was approved for DACA then she would be protected from being deported solely because of her lack of immigration status. However, she could still be deported if she commited any crime that would make her inadmissible to the US. The protection lasts for two years, though Obama's latest executive action will extend it to three years. She would also be able to apply to renew that protection as long as the program remains in effect. An eligible person CAN submit a DACA application while they are in removal proceedings, provided they are not currently in immigration detention, but the application won't be approved if the basis for the removal was something more serious than simple immigration status.

Not everyone who entered the US as a child is eligible to apply for DACA. They must have entered before they were 16. They must be under the age of 31 (as of June 15, 2012). They must have continuously resided in the US since June 15, 2007. They must not be a high school dropout (with some exceptions). They must not have committed a crime that would make them inadmissible to the US (i.e., deportable).

Anyway, this is all just supposition. Your original question has been answered about as well as it can be answered, given that we don't have all of the facts. I guess you'll find out if they let her back in when her vacation is over.