AOS for someone with unlawful presence married to USC

[Vanessa + Mario 4]

Hey fellow VJer's!!

I have tried looking for a similar topic, and current!, but have not been able to find what I am looking for.

A close friend of mine, married her husband here in the U.S. in November of last year. She is a USC and he entered without inspection to the U.S. I have been told that he can file for AOS, along with an I-601a waiver, and he will not have to leave the country. Is this true?

Any input or information on this topic would be greatly appreciated! Thanks!

[aleful 1,905]

hi

not true

, because he entered without inspection, he will have consular processing in his country of origin after the waiver is approved

for now they can only file the i130 and each of them fill out the G325A

the approved i130 will be sent to the National Visa Center, at that stage the pay the forms but don't send in the forms and documents. along with proof of payment of both forms, they send that with the waiver and the hardship letter.

wait for the approval and then continue with the NVC stage.

the last thing is the interview in his country

[Vanessa + Mario 4]

hi

not true

, because he entered without inspection, he will have consular processing in his country of origin after the waiver is approved

for now they can only file the i130 and each of them fill out the G325A

the approved i130 will be sent to the National Visa Center, at that stage the pay the forms but don't send in the forms and documents. along with proof of payment of both forms, they send that with the waiver and the hardship letter.

wait for the approval and then continue with the NVC stage.

the last thing is the interview in his country

Thanks so much for your quick reply Aleful!

Let me see if I understand… They have to file an I-130 and a G-325A and whatever other paperwork goes along with that. He has to return to his home country. They have to file a waiver after sending the I-130 and wait for approval of this waiver. Finally, he will have the interview at the designated consulate.

[aleful 1,905]

hi

no, he doesn't have to return to his country until he has the interview, that's what the i601A is for, he can stay all that time in the US until a few days before the interview, because he has to get his medical, vaccination and fingerprints before the interview

[Boiler 43,430]

Does he have DACA?

[Vanessa + Mario 4]

hi

no, he doesn't have to return to his country until he has the interview, that's what the i601A is for, he can stay all that time in the US until a few days before the interview, because he has to get his medical, vaccination and fingerprints before the interview

Oh, ok. Thank you. So, they file an I-130, and not an I-485, for AOS.

Does he have DACA?

No, Boiler. Not that I am aware of. No DACA.

[Boiler 43,430]

DACA would give him other options, if he has not looked into it he should. Of course he my not be eligible, but then he may not be eligible for the I 601a either.

[Vanessa + Mario 4]

DACA would give him other options, if he has not looked into it he should. Of course he my not be eligible, but then he may not be eligible for the I 601a either.

Home country is Mexico, I heard DACA does not apply. There is a chance he may not be eligible for I-601a??

[aleful 1,905]

hi

DACA has nothing to do with the country of origin, did he come to the US before he was 16 years old?

and why wouldn't he qualify for the waiver?

[Vanessa + Mario 4]

hi

DACA has nothing to do with the country of origin, did he come to the US before he was 16 years old?

and why wouldn't he qualify for the waiver?

I think he was at least 16, but I have not asked.

I was reading on what is needed, and I believe that he does qualify.

[Boiler 43,430]

I 601a has qualifying requirements, criminal history is the usual main issue.

[aleful 1,905]

hi

he would have needed to enter the country before 16, max 15

[1.618 17]

For an I-601a waiver you must prove extreme hardship (emotional, psychological, financial...) to the USC. There are denials, but the USCIS is not known to refer to ICE in those cases. So I guess there is no harm in trying (aside from losing a fair amount of money in the event the waiver is denied)...

You file the I-130. If you receive an approval, it is sent to the NVC. You pay the required fees (Affidavit of Support and IV) but do NOT send in any required documents/file the immigrant visa. Prepare the waiver application (with supporting documents) and file the the USCIS. If the waiver is approved, then it goes to the consular processing.

I strongly recommend using an attorney for the waiver application. Or really discussing thoroughly with someone who has gone through the process and had one approved. It's not a matter of just filing the application and a statement from the USC.

On a side note, DACA is applicable for those who came under the age of 16 before June 15, 2007 and that were present in the US on June 15, 2012 no matter which country they are from. DACA is not a path to a green card. It only protects you from removal proceedings and gives you an employment authorization document (and therefore a social security number). Waiver is the way to obtain a green card.

Good luck!

Edited April 18, 2015 by 1.618

[Pitaya 2,576]

~Non-contributory comment removed. Keep on-topic or do not post.~

[Vanessa + Mario 4]

For an I-601a waiver you must prove extreme hardship (emotional, psychological, financial...) to the USC. There are denials, but the USCIS is not known to refer to ICE in those cases. So I guess there is no harm in trying (aside from losing a fair amount of money in the event the waiver is denied)...

You file the I-130. If you receive an approval, it is sent to the NVC. You pay the required fees (Affidavit of Support and IV) but do NOT send in any required documents/file the immigrant visa. Prepare the waiver application (with supporting documents) and file the the USCIS. If the waiver is approved, then it goes to the consular processing.

I strongly recommend using an attorney for the waiver application. Or really discussing thoroughly with someone who has gone through the process and had one approved. It's not a matter of just filing the application and a statement from the USC.

On a side note, DACA is applicable for those who came under the age of 16 before June 15, 2007 and that were present in the US on June 15, 2012 no matter which country they are from. DACA is not a path to a green card. It only protects you from removal proceedings and gives you an employment authorization document (and therefore a social security number). Waiver is the way to obtain a green card.

Good luck!

Thanks for the info! I agree- waivers are very delicate matters (I had to get a lawyer to help with my fiancé, at the time)

I will relay the message.

Edited April 20, 2015 by vanmar820