undocumented alien from canada living in us-help!

[Mrs.Driscoll 0]

my husband is from canada (he ran a small border crossing to get here) and is undocumented. a few years back we hired a lawyer who ended up taking 11k from us and then dissapearing off the face of the planet.

we have no paperwork submitted in to dhs, and my husband went down there to talk to them but they were ZERO help. we dont have enough money to hire another lawyer to do the paperwork so i was hoping you guys could help.

we have no i-94 or i-95 number which seems vital to this process as well as no documentation of where he entered the country.

any starting point here? he has been in the country for almost 5 years and we have two children. we have been married for almost 4 years so its not like we have any problem proving our marriage is legitimate, but i cant uproot to vancouver for processing and we need him here.

thanks!

[yohino 22]

I'm not a 100% sure of this but pretty close to it.

If he didn't enter legally he won't be able to Adjust his status in the US.

Being illegal in the US for 5 years will land him a 10 year ban from the US if/when he leaves.

[Kathryn41 3,205]

When you say he 'ran a small border crossing' what exactly do you mean? Did he cross at a small border crossing and go through a guard or did he actually slip into the US without being inspected at the border crossing?

There is a big difference in your options based upon this information.

If he entered at a border and spoke to a border guard when he crossed the country then he entered legally. He was allowed to stay a maximum of 6 months legally and any time after that is considered out of status. Since he has more than a year of out of status presence in the US, if he leaves the US he will incur an automatic ban of 10 years before he will be allowed to re-enter the US. If he did cross the border and spoke to a border guard on his way in, even though he is in the country illegally now, he is allowed to adjust his status from overstay visitor to permanent resident through his marriage to you. You would sponsor him as a family member using an I-130 petition and he would file the I-485 application. Once that was approved an overstay presence and illegal work would be forgiven.

Canadians are not given I-94s when they enter as visitors so he would not have one. You would just write in Canadian anywhere it asks for an I-94.

If, on the other hand, he entered by sneaking past a border guard and did not actually talk to a border person upon entry, then he is not only in the country illegally, he entered the country illegally. If that is the case, he is not allowed to adjust status from within the US at all. It can only be done outside of the country - and when he leaves the US, his illegal presence will trigger the automatic 10 year ban. As well, because he entered illegally, he would also be considered inadmissible. There are waivers that can be filed for both of those situations but they would depend upon your being able to prove hardship to you if you had to move to his country to live with him there. That is very difficult to do when the country is Canada as there are few circumstances that would prove to be a real hardship (pain of separation is not considered a hardship).

So, the ultimate question is did he enter the country going through a legal border crossing and speaking to a border guard, or did he bypass the legal border crossing and enter illegally?

Edited November 3, 2010 by Kathryn41