Marry Now or Keep Waiting and Hoping

[Scalpel 14]

I am a naturalized USC. My fiancee was brought into the US as a minor without documentation. As many of you are aware, the DREAM Act, an Act that aims to provide legalization to people in situation such as hers is pending in Congress. It passed the House but was defeated again earlier today in the Senate, a crushing blow to many. We put off getting married in August when we first learned of this act, hoping that Congress would have decided "yea or nay" by December. This Act's failure to pass has thrown us into a dilemma.

As things currently stand, her chances of getting legalization by marriage to me is slim to nil. And even if the DREAM Act passes, we don't know how the USCIS will interpret the law. Who knows, they might decide that people who are already married to USCs don't qualify as they're already eligible to apply for legalization as spouses of USCs - a proposition with little chances of success under our current circumstances. I fear if I marry her now and it turns out that spouses of USCs are indeed excluded from the Act, then I will have ruined her best(and perhaps only) chance at legalization. Therein lies our dilemma: to marry now or to keep waiting and hoping?

Questions, comments, advice or suggestions appreciated.

[Boiler 45,486]

The chances of the Dream Act passing were slim to nil.

You seem to have an option, why not take it?

[amykathleen2005 441]

I think the problem is that you can only adjust status as a spouse if you have a status to adjust from which his fiance does not if she arrived without documentation. Unfortuntately the OP's fiance now has almost no options, probably the best would be to get married, have her leave the US apply for a CR-1 visa. She will most likely will be denied but then she can file a hardship waiver as the wife of a US citizen and hopefully come away with the CR-1 visa and green card.

[Deputy Purple 1,294]

How long past her 18th birthday has she been in the US?

Keep in mind that for the hardships waiver you'll have to prove hardship on the USC not the Alien Spouse.

[Scalpel 14]

The chances of the Dream Act passing were slim to nil.

You seem to have an option, why not take it?

Well, it already passed the House but fell short in the senate just by 5 votes. So, maybe the chances of it passing in the future are much more than slim-to-nil. Besides, the president and many senators have vowed to continue fighting for the Act until it passes, which gives us hope. Read more about it here.

The only other option doesn't look so easy. It promises to be long and tedious; possibly involving separation for an indeterminate length of time, and without a guarantee of success.

[CeCe 0]

Well, it already passed the House but fell short in the senate just by 5 votes. So, maybe the chances of it passing in the future are much more than slim-to-nil. Besides, the president and many senators have vowed to continue fighting for the Act until it passes, which gives us hope. Read more about it here.

The only other option doesn't look so easy. It promises to be long and tedious; possibly involving separation for an indeterminate length of time, and without a guarantee of success.

I have read on VJ where the spouse overstayed their visa by 20 years and was advised to get married, adjust their status and also file the I-130. I will try to track down the link for you. I think 20 years overstay is probably comparable to coming in as a minor without papers, just my two cents.

[Scalpel 14]

How long past her 18th birthday has she been in the US?

Keep in mind that for the hardships waiver you'll have to prove hardship on the USC not the Alien Spouse.

She was brought in when she was 13 and she's been here 15 years.

We have 2 children together. I don't know if that is sufficient to prove hardship but I suspect not. However, in about 6 months or so, my career will enter a different phase that will be 5 - 7 years long and will require me to be working 80-100 hours per week. Maybe then I can successfully argue that separating me from my wife will effectively end my career and place an undue burden on our family.

[Scalpel 14]

I have read on VJ where the spouse overstayed their visa by 20 years and was advised to get married, adjust their status and also file the I-130. I will try to track down the link for you. I think 20 years overstay is probably comparable to coming in as a minor without papers, just my two cents.

It appears our situation is a little different. My fiancee didn't overstay because didn't come in with a visa to begin with. Your input is very much appreciated though.

[SuperDuper! 230]

The chances of the Dream Act passing were slim to nil.

You seem to have an option, why not take it?

Agreed. The Dream Act was only that, a dream. Really, it was another code phrase for Amnesty, and the public isn't buying it.

Good luck to the OP, whatever route you take.

[w8inglongtime 29]

I'm thinking if she came in without inspection, then she can leave undetected. There's no paper trail on her since the Government has no idea she's here. Maybe she can leave and have you file a k-1 and bring her over and get married. That route usually takes anywhere from 6 months to a year. That will be better than just waiting and hoping for some kind of an amnesty someday. I'm sure she'll want to drive, get a job and be able to travel outside the U.S. someday. You simply can not get married here and adjust since she has no status to adjust from. Good luck on whatever decision you make.

[JimVaPhuong 4,863]

She was brought in when she was 13 and she's been here 15 years.

We have 2 children together. I don't know if that is sufficient to prove hardship but I suspect not. However, in about 6 months or so, my career will enter a different phase that will be 5 - 7 years long and will require me to be working 80-100 hours per week. Maybe then I can successfully argue that separating me from my wife will effectively end my career and place an undue burden on our family.

Having to take care of your two children by yourself is excellent evidence of hardship.

Re. the DREAM Act - The President wants some sort of immigration reform on his list of accomplishments for the 2012 election. The bill was reintroduced now because there's little chance it will pass after the Republicans take control of the House and gain seats in the Senate next month.

The cutoff age for the bill, in it's current form, is 29. Your fiancee would only have one year left. If you want to wait and see if the bill passes then wait until you're sure she's too old to be included. After that, there will be no point in waiting any more, and you can pursue a different route, such as a CR1.

I'm thinking if she came in without inspection, then she can leave undetected. There's no paper trail on her since the Government has no idea she's here. Maybe she can leave and have you file a k-1 and bring her over and get married. That route usually takes anywhere from 6 months to a year. That will be better than just waiting and hoping for some kind of an amnesty someday. I'm sure she'll want to drive, get a job and be able to travel outside the U.S. someday. You simply can not get married here and adjust since she has no status to adjust from. Good luck on whatever decision you make.

She will be asked about her history with the US and immigration when she applies for the CR1. She cannot lie about it, and suggesting that she does is a violation of the VJ TOS.

There's also a good chance the US government has some records to indicate she is here. She's been here since she was 13 years old, and has been here for 15 years. Unless she lived in a remote cabin and never talked to anyone then it's likely that's there's some record of her presence. At the least, she probably attended school here. How would the OP explain the fact that her children were born in the US if she had never been here?

[Scalpel 14]

Agreed. The Dream Act was only that, a dream. Really, it was another code phrase for Amnesty, and the public isn't buying it.

Good luck to the OP, whatever route you take.

To the contrary, this Gallup poll clearly shows that a majority of American public is buying the Dream Act. But whether this bill has a slimmer chance of passing in the next Congress or whether more/less Americans will continue to support the bill is a different story. But for now, let's try to stick to the facts.

Edited December 19, 2010 by Scapel

[Harpa Timsah 13,258]

It appears our situation is a little different. My fiancee didn't overstay because didn't come in with a visa to begin with. Your input is very much appreciated though.

That's not exactly true. There are bans that are triggered when people who overstayed leave the country. While she didn't enter with a visa, she still can accumulate overstay days. Up to the child's 18th birthday, no days of illegal presence are accumulated, so if a child brought here leaves within 180 days after his/her 18th birthday, there will be no bans placed on them to reenter with a proper visa. (They understand that children have no choice). Once they are 18, however, they become responsible for their own actions. As you know, someone who entered without inspection is not eligible to adjust status.

To the previous post (Edit: okay, now it's up there a few), even if the OP's fiance entered without a visa, she will not leave undetected. She will trigger her 10-year ban upon exit. (Not sure how they do this, how they determine date of entry, but they do somehow).

OP- I don't think marrying will kill her chances of being accepted under the Dream Act if it passes ever. Is that in the legislation? I'd look at that hardship waiver (you also have two USC children it seems). I know that is a scary path with no guaranteed success, though. I wish you luck whatever you do.

Edited December 19, 2010 by Harpa Timsah

[Aztec&Taino 144]

It appears our situation is a little different. My fiancee didn't overstay because didn't come in with a visa to begin with. Your input is very much appreciated though.

I think this is the main problem because I have been told that people can adjust their status IF they had a status to begin with. In other words, if your SO had come under a tourist visa, for example, even if she overstayed, the Adjustment Of Status can take place. It is unfortunate that the DREAM Act did not pass today. Quite honestly, I do not think it will pass...at least for a very long time. Presently there are too many conservatives in Washington and the illegal immigration debate is quite the hot issue now because of the present economic misfortunes. If our country has substantial economic rebound, then the tensions might ease, and then immigration reform could become a reality. I am sorry about your situation and the situations of countless others who would do near anything to call themselves an American, yet this country will not let them...

[Aztec&Taino 144]

Agreed. The Dream Act was only that, a dream. Really, it was another code phrase for Amnesty, and the public isn't buying it.

Good luck to the OP, whatever route you take.

The DREAM Act is clearly NOT amnesty at all... But wait, you have a Palin button as part of your signature, so I will not bother to explain the details to you...