Helping a friend

[concernedfriend 0]

My friend Veronica has been here illegally for about 10 years. About two months ago, she married a US citizen. She was brought here illegally as a child from Mexico. Veronica is a young teen mom, she is 18. She wants to become legal. I really don't have a clue what her first step is. She has very limited funds, so I'd like to get advice on how she can go about doing this without an attorney. Thanks so much!

[Anh map 2,098]

This is a do it yourself site. The US Citizen spouse should log on to VJ and read through the guides to familiarize himself with the procedures.

[vip1 8]

Someone correct me if i'm wrong, but i was under the impression that unless the person came in legally (meaning she was inspected by an US officer at the time of arrival) you CAN NOT get legal status.

[baron555 934]

Ditto everything above. The USC, the husband, would have to attempt to AOS her but she risks having the 10 year ban imposed due to her overstay.

So the couple should have that as a Plan B, that she must go back to Mexico for 10 years and then attempt again, with no guarantees.

Sorry but thems the rules.

[wowswift 3]

go see an attorney. or someone else can read this and see what it means, but as I read it, anytime before the age of 18 doesn't count towards the overstay. But I don't know if the rule of the no AOS if you enter illegally would still apply if the person was brought in by their parents.

(B) ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(B)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

source (towards the bottom): http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

[Gary and Alla 3,694]

My friend Veronica has been here illegally for about 10 years. About two months ago, she married a US citizen. She was brought here illegally as a child from Mexico. Veronica is a young teen mom, she is 18. She wants to become legal. I really don't have a clue what her first step is. She has very limited funds, so I'd like to get advice on how she can go about doing this without an attorney. Thanks so much!

I think you should get an attorney.

[Krikit 1,165]

Moving to AOS From Other Visas forum.

[john_and_marlene 162]

Nevertheless, she shouldn't be even worried about her overstaying or illegal presence even as an adult. Why? Because an overstaying, working without INS authorization and other technical violations of immigration laws are automatically forgiven under immigration laws whenever beneficiary (applicant) is an immediate relative of a US citizen on a visa petition. And she is a spouse of a US citizen and will be adjusting her status by virtue of being married to a US citizen. So obviously, her prior or even a future illegal status, regardless of how long that would be, will automatically be forgiven without any question being asked. Thus, no worry in this regard.

This is not true. Although these violations cannot be used to deny adjustment of status, there is no automatic forgiving of immigration violations due to marriage to a US citizen. She remains in violation even after the marriage and is subject to deportation. Filing for AOS may afford her a period of authorized stay while waiting for adjudication but is not guaranteed. Only upon successful adjustment of status will the violations be dismissed.

In this particular case, if she entered without inspection, she cannot adjust status even through marriage to a US citizen. She will need to leave the country and enter again legally. Since her 18th birthday, she has accumulated out of status time toward a ban. This out of status time is not removed due to the marriage and will trigger bans (3 years after 180 days--10 years after 1 year). The bans may or may not be overcome with waivers but are certainly not forgiven without any questions being asked.

There is currently no path to adjustment of status without first leaving the country for an entry without inspection.

[JERIII 8]

Nevertheless, she shouldn't be even worried about her overstaying or illegal presence even as an adult. Why? Because an overstaying, working without INS authorization and other technical violations of immigration laws are automatically forgiven under immigration laws whenever beneficiary (applicant) is an immediate relative of a US citizen on a visa petition. And she is a spouse of a US citizen and will be adjusting her status by virtue of being married to a US citizen. So obviously, her prior or even a future illegal status, regardless of how long that would be, will automatically be forgiven without any question being asked. Thus, no worry in this regard.

This is not true. Although these violations cannot be used to deny adjustment of status, there is no automatic forgiving of immigration violations due to marriage to a US citizen. She remains in violation even after the marriage and is subject to deportation. Filing for AOS may afford her a period of authorized stay while waiting for adjudication but is not guaranteed. Only upon successful adjustment of status will the violations be dismissed.

In this particular case, if she entered without inspection, she cannot adjust status even through marriage to a US citizen. She will need to leave the country and enter again legally. Since her 18th birthday, she has accumulated out of status time toward a ban. This out of status time is not removed due to the marriage and will trigger bans (3 years after 180 days--10 years after 1 year). The bans may or may not be overcome with waivers but are certainly not forgiven without any questions being asked.

There is currently no path to adjustment of status without first leaving the country for an entry without inspection.

This person MUST see a lawyer. As has been pointed out above, some of the law is different with respect to minors. I don't know how much.

In addition, the original poster might clarify what "brought here illegally" actually means in this case.

[john_and_marlene 162]

This is not true. Although these violations cannot be used to deny adjustment of status, there is no automatic forgiving of immigration violations due to marriage to a US citizen.

First, I didn't say anything specific about someone to be automatically forgiven for overstaying if s/he marries a US citizen; rather I said that immigration laws automatic forgive an applicant who is an immediate relative of a US citizen, and applicant is a beneficiary on an immigrant visa petition (I-130). So, the spouses of US citizen are not the only ones to get automatic forgiveness for overstaying or working without permission; rather other immediate relatives too. But it does include spouse of US citizen.

The above mentioned case has two issues- (1) entering into the US illegally or without an inspection; (2) overstaying (overstaying period starts for this girl only since she has turned 18 years old). As for first issue of entering into the US without an inspection then there is no way out for her on this except going back to home to get her immigrant visa. So she must be going home. But when she would depart the US then she would be subject to another bar for entering into the US for next three years for being overstaying in the US after she turns 18. However, this bar wouldn't apply to her if she leaves the US within 6 months of turning 18. Why? Because her overstaying period starts since she turned 18. As per immigration laws and interm policy, next 6 months are considered a toll period. But if she would overstay over 6 months after turning 18 without any status then she would be subject to 3 years bar. That means, she would need to get waiver for both bars-(a) forgivenss for entering into the US illegally previously; (2) for overstaying after 6 months of her tunring to 18. And if she would overstay here for a year or more after turning 18 then she would be subject to bar to 10 years. But if she would leave the US within 6 after turning 18, then this bar wouldn't apply on her. 212(a)(9) of the Immigration and Nationality Act states this. So if she would leave right now then none of this bar would apply her because she just turns 18.

As for the second issue- overstaying (and working without permission) then it's automatically forgiven pursuant to Immigration and Nationality Act 245© which clearly states about making an exception to an immediate relatives of US citizen in this situation. Read this law and check this site and others to know about this law. I was an immigration attorney. I've no reason to mislead anyone. Thousands of immigrants were able to adjust their status after marrying with a US citizen despite of being overstayed for 10-20 years over here but they did enter with inspection. If someone entered without an exception (as what the case in hand) then there is no hope for that person now except to go back to his/her own country to have the interview there. But when they would leave the US then they will be subject to another bar of either 3 years or 10 years depending on how long they overstayed here.

If the overstay and/or unauthorized work is forgiven with the application, then they would no longer apply even if the adjustment was not successful. There is no forgiveness until the adjustment is adjudicated favorably. No where in the INA does it state that they are automatically forgiven. If you contend that it does, please provide a reference. In fact, the only place you will find that those factors cannot be used to deny an adjustment of an immediate family member is in case law.

Edited June 2, 2009 by john_and_marlene

[concernedfriend 0]

Thanks to everyone for your responses. The consensus seems to be that Veronica and her husband definitely need an attorney. I was hoping for a different answer BUT it seems that her just turning 18 may just work to her favor. I really appreciate your time and effort!