Voluntary Departure/Adjusting status

[Sibca04 4]

My husband entered illegally in 2004 to the US. In 2011 he was arrested and detained by ICE for driving without a license under the 287-G law. We were not married nor together at that time. The attorney he had told him it was best to request voluntary departure. So he did and didn't leave. Fast forward. We married 3 years ago and are trying to adjust his status. I've just received approval letter last week after filing the i-130 and it has been sent to the department of state for visa processing. The letter stated that he did not qualify to adjust status. We have meeting with our attorney Thursday but.. I am just wondering WHAT we can do and if anyone has experience. I know there is a 10 year bar from adjusting status if you fail to depart. So, we have to wait until 2021 but attorney mentioned we may be able to do it sooner.. 

 

Anyone else have experience with something similar? 

[Crazy Cat 39,794]

2021? Is he already banned or does his ban begin as soon as he departs the US (which I thought he must do to gain inspection)?

[Sibca04 4]

1 minute ago, missileman said:

2021? Is he already banned or does his ban begin as soon as he departs the US (which I thought he must do to gain inspection)?

From what we understand there is a 10 year ban from adjusting status inside the US ---- if you do not leave the US after a voluntary departure request. 

 

If he departs now, there will be another ban from the US that would go into place which is diff.. for up to 10 years.. 

[Going through 5,668]

10 minutes ago, Carla Sibrian said:

From what we understand there is a 10 year ban from adjusting status inside the US ---- if you do not leave the US after a voluntary departure request. 

Curious where you heard that one from.

Bars don't kick in until the person has actually left the US.  

 

Right now he has no legal  way to adjust status without leaving the country first and re-entering with inspection (ie. entering the country legally).   Upon leaving the US, he will trigger the 10-year bar and cannot travel to the US until that is served out. 

 

You can meet with your attorney of course, however no attorney can change immigration laws.  Perhaps your attorney meant he would try some sort of hardship plea in the event that your husband is given a notice to appear before an immigration judge in removal proceedings.  Might be hard to do any sort of plea, however, since your husband has ignored immigration laws twice now (entering illegally, and then staying illegally after being ordered to depart).

 

Edited February 5, 2018 by Going through

[Crazy Cat 39,794]

This sounds risky to me.....How does he gain ANY type of authorized stay until 2021 or whenever?

 

"Consequences of Failing to Depart

Under the immigration laws, aliens who do not voluntarily depart will be issued a civil fine that can range in cost from $1000 to $5000 AND will be deemed ineligible to receive the following forms of relief for 10 years: cancellation of removal, adjustment of status, registry, voluntary departure, or a change of nonimmigrant status. Aliens should only apply for an order of voluntary departure if they intend to and are able to timely depart and satisfy any other conditions imposed."

[Sibca04 4]

12 minutes ago, Going through said:

Curious where you heard that one from.

Bars don't kick in until the person has actually left the US.  

 

Right now he has no legal  way to adjust status without leaving the country first and re-entering with inspection (ie. entering the country legally).   Upon leaving the US, he will trigger the 10-year bar and cannot travel to the US until that is served out. 

 

You can meet with your attorney of course, however no attorney can change immigration laws.  Perhaps your attorney meant he would try some sort of hardship plea in the event that your husband is given a notice to appear before an immigration judge in removal proceedings.

 

Consider that a person who is granted voluntary departure after 1996 but fails to voluntarily leave the United States may face:

• civil penalties including fines of $3,000; and
• a 10-year bar from important immigration options such as cancellation of removal, adjustment of status, and change of status;

Also, it is harder to file a motion to reopen or reconsider a voluntary departure order, although this issue has been the subject of extensive litigation and new regulations.

______________________________________

** you can find this all over the web which is what our lawyer has discussed with us. I am likely using the wrong words bars/bans and such... hints why we have an attorney.. We know we have no other options other than him leaving for 10 years.. . Just curious if anyone has a similar case.. and has been able to adjust while remaining in the US.

7 minutes ago, missileman said:

 

He would remain illegal in the US until 2021.. 

Edited February 5, 2018 by Carla Sibrian

[Boiler 43,810]

He has no status to adjust from

 

He entered illegally you said.

 

He now has a deportation order have broken his commitment to voluntarily depart

 

As well as a 10 year ban for illegal presence which kicks in when he departs.

 

This is how Lawyers earn big bucks.

[Going through 5,668]

15 minutes ago, Carla Sibrian said:

Consider that a person who is granted voluntary departure after 1996 but fails to voluntarily leave the United States may face:

• civil penalties including fines of $3,000; and
• a 10-year bar from important immigration options such as cancellation of removal, adjustment of status, and change of status;

Also, it is harder to file a motion to reopen or reconsider a voluntary departure order, although this issue has been the subject of extensive litigation and new regulations.

______________________________________

** you can find this all over the web which is what our lawyer has discussed with us. I am likely using the wrong words bars/bans and such... hints why we have an attorney.. We know we have no other options other than him leaving for 10 years.. . Just curious if anyone has a similar case.. and has been able to adjust while remaining in the US.

Legally, he has no basis to file the AOS while remaining in the States.

USCIS allows for the AOS of an individual who has lawfully been admitted to the States (ie. entered with inspection), as one of their requirements at the time of filing.

 

What you quoted above generally refers to those people who have entered legally under a type of visa and then overstayed their visa, and granted voluntary departure....but they did enter legally which is the key difference between them and your husband.

 

It's good that you are consulting an attorney on this, at the very least they will be able to help prepare you for what lies ahead logistics-wise.

Edited February 5, 2018 by Going through

[Sibca04 4]

We know what a small chance we have in changing whatever we are in right now. But, going to El Salvador with our severely autistic son just isn't going to happen. So, here we are believing what our attorney is telling us and hoping for a positive outcome - without going back to El Salvador. 

[Going through 5,668]

9 minutes ago, Carla Sibrian said:

We know what a small chance we have in changing whatever we are in right now. But, going to El Salvador with our severely autistic son just isn't going to happen. So, here we are believing what our attorney is telling us and hoping for a positive outcome - without going back to El Salvador. 

That's why I mentioned before that your lawyer probably meant he would help plead hardship if your husband appeared before an immigration judge, then detained, and ordered deported....not that your lawyer meant there would be some way of your husband adjusting status from within the US....only because it's not legally possible at this point (without him leaving and incurring the 10-year bar).

 

 

Edited February 5, 2018 by Going through

[Crazy Cat 39,794]

51 minutes ago, Carla Sibrian said:

We know what a small chance we have in changing whatever we are in right now. But, going to El Salvador with our severely autistic son just isn't going to happen. So, here we are believing what our attorney is telling us and hoping for a positive outcome - without going back to El Salvador. 

Good luck.  I'm not convinced that he can just evade the authorities inside the US for 3 more years( especially since they now know where he lives) , and suddenly his ban is non longer in effect.....I was under the impression that he would HAVE to leave the US and re-enter under inspection (triggering a 10 year ban)......I hope your attorney knows what he/she is talking about........

 

Good Luck.

 

Edit:  Maybe @ geowrian  has some thoughts on this subject.

Edited February 5, 2018 by missileman

[Sibca04 4]

I hope our attorney knows as well. We did consult with others and were given the same information as well. We have lived in the same place for 11 years so if they haven't come for him yet.. hopefully, we can wait out the 3 years if needed.

[Crazy Cat 39,794]

I found this attorney's opinion, for what it's worth......

 

http://www.alllaw.com/articles/nolo/us-immigration/legal-options-undocumented-illegal-immigrant-stay.html

[Boiler 43,810]

5 minutes ago, Carla Sibrian said:

I hope our attorney knows as well. We did consult with others and were given the same information as well. We have lived in the same place for 11 years so if they haven't come for him yet.. hopefully, we can wait out the 3 years if needed.

He is deportable, they just have not caught him yet, when he failed to leave voluntarily automatically turned into a Deportation Order.

 

Filing 1 485 just told them where he is.

 

Now he may well be not at the top of their list but that does not change to situation. 

 

[Going through 5,668]

11 minutes ago, Carla Sibrian said:

I hope our attorney knows as well. We did consult with others and were given the same information as well. We have lived in the same place for 11 years so if they haven't come for him yet.. hopefully, we can wait out the 3 years if needed.

Probably because in those last 11 years his illegal status was not spotlighted....so he flew under the radar, kept quiet as it were.

 

Seems to reason the i-130/i-485 filing will have now brought him to USCIS's attention in a huge way...start a chain of events if presumably after the denial letter comes the NTA letter.

Edited February 5, 2018 by Going through