Illegal Entry - Married to USC

[slim 1,525]

I met a guy recently who's married to a woman from a Central American country.

Apparently she entered illegally about 8 years ago and has been living here since. They've been married a little over five years with a couple kids and she's never had any sort of documentation.

The attorneys are telling them she needs to go home and then apply for "forgiveness" and a return visa (unknown type) due to "hardship."

That sounds like a bad idea to me. I was always under the impression that once someone's here - especially if they're married with kids - they should never leave until they get their papers worked out. I was also under the impression that even if she's here illegally, once she's married with kids all she had to do was apply for AOS.

What should they do? I told them I know some "experts" on immigration. Can you folks point us in the right direction?

[Harpa Timsah 13,258]

You can't do AOS from EWI (enter without inspection). So yes, attorneys are correct, she needs to go home, get spousal visa, and then apply for waivers to get back (spousal visa will be denied - USC applies for hardship waiver to overturn denial). You can only do AOS with a legal entry.

Edited August 16, 2011 by Harpa Timsah

[Deputy Purple 1,294]

Agree with Harpa,

To adjust status she needs to have status in the US which she doesn't since she entered without inspection. She is subject to a couple of Bans, 1 for EWI and 1 for illegal presence.

Recommend that your friend go to immigrate2us.net they specialize in hardship waivers for central american countries.

[ginimerlo 0]

Wow! That is so interesting! I was always under the impression that if you had kids that were born here and also married toa us citizen it would be easier! My friend married her Mexican fiance and they did it while she was visiting so she could get her papers sorted... last time I spoke to her she said she got them within 4 months... I am not sure how true this is, I would have thought that going the short way it would be harder than applying for the fiance an paying the fees!

Leaving the country does sound like an awful idea to me! especially if your family is here ands you have been living in the country for so long!

Best of luck to them!

[Deputy Purple 1,294]

Wow! That is so interesting! I was always under the impression that if you had kids that were born here and also married toa us citizen it would be easier! My friend married her Mexican fiance and they did it while she was visiting so she could get her papers sorted... last time I spoke to her she said she got them within 4 months... I am not sure how true this is, I would have thought that going the short way it would be harder than applying for the fiance an paying the fees!

She must have been here on a B Visa, sounds like they may have committed Immigration Fraud my her entering with intent to AOS but the key difference is that she was inspected and admitted or paroled at the border so she had status in the US to adjust.

[LlamaInvasion 76]

Having kids won't impact your status in the US in any way; that's a whole "anchor baby" myth, and I hate it with a fiery passion.

Entering Without Inspection puts a person in one of the worst possible situations as far as gaining legal status in the US goes, regardless of marriage or relation to any US citizens, too.

It's a completely different situation than anyone entering WITH inspection (which is what it sounds like your friend did, ginimerio).

Living in a country for so long and having friends, doesn't entitle anyone to legal status. Leaving the country may not seem like the best idea, but the alternative is always hiding and running, because when they eventually do catch the person, they WILL deport him or her (regardless of kids, marital status, or other US citizen relatives), and apply that lifetime ban that the person was trying to avoid, anyway.

[LIFE'SJOURNEY 970]

Having children in the US only entitles to you one thing, paying or receiving child support. Both is a gamble, because there is no guarantee that either will pay off.

[Arlington 5]

The law is different from the reality on the ground. Do a google search on "John Morton" and "prosecutorial discretion" and you'll see that there are many shades of gray. Not the way I'd ever do things, but by virtue of now being plugged-into the immigrant community, I've seen some results that I'd never have expected. An excellent, and well-connected lawyer is a prerequisite and expect to pay five figures to get it done.

Having kids won't impact your status in the US in any way; that's a whole "anchor baby" myth, and I hate it with a fiery passion.

Entering Without Inspection puts a person in one of the worst possible situations as far as gaining legal status in the US goes, regardless of marriage or relation to any US citizens, too.

It's a completely different situation than anyone entering WITH inspection (which is what it sounds like your friend did, ginimerio).

Living in a country for so long and having friends, doesn't entitle anyone to legal status. Leaving the country may not seem like the best idea, but the alternative is always hiding and running, because when they eventually do catch the person, they WILL deport him or her (regardless of kids, marital status, or other US citizen relatives), and apply that lifetime ban that the person was trying to avoid, anyway.

[Used to be broken 147]

I met a guy recently who's married to a woman from a Central American country.

Apparently she entered illegally about 8 years ago and has been living here since. They've been married a little over five years with a couple kids and she's never had any sort of documentation.

The attorneys are telling them she needs to go home and then apply for "forgiveness" and a return visa (unknown type) due to "hardship."

That sounds like a bad idea to me. I was always under the impression that once someone's here - especially if they're married with kids - they should never leave until they get their papers worked out. I was also under the impression that even if she's here illegally, once she's married with kids all she had to do was apply for AOS.

What should they do? I told them I know some "experts" on immigration. Can you folks point us in the right direction?

They are changing the processing rules on the waivers, so its a ####### shoot on how long she would be out of the country.

In this type of scenario if she has only ONE Illegal ENTRY and no more and no more complicating issues, they would file the I130 wait for approval and NVC to schedule interview, travel to home country interview and turn in the waiver. Depending on the country and the backlog up to a year possibly longer for decision. Soon they will process I601's stateside so no telling if that will help or hurt processing times. Suspect it will help initially.

Strongly advise against "do it yourself" on this type of case, have attorney very knowledgeable in I601 waivers evaluate the case before departing the country.

Edited August 16, 2011 by brokenfamily

[Brother Hesekiel 2,236]

That's really a super easy case.

As Harpa stated, an EWI cannot adjust status as she has no status to adjust from.

Husband files I-130. Once approved--an it will be approved as it only establishes the relationship between the petitioner and the beneficiary--it goes to NVC. NVC collects stuff and the wife applies for an IR-1 visa at the U.S. consulate in her home country. It will be denied based on the 10-year bar she triggered.

Knowing that, hubby had a thorough consultation with a waiver expert such as Laurel Scott, knows that it will cost about $8K to retain her, and Laurel files the I-601 in the USC's behalf. In order to get it approved, the U.S. citizen needs to show extreme hardship. With USC children and a job, Laurel can pull this off. She will also have to show that hubby and kids can't really move to the wife's country without suffering extreme hardship. The whole shabang will take about a year, perhaps 18 months. Once approved, the I-601 will be presented at the consulate and the IR-1 will be approved.

[slim 1,525]

Thanks for the replies, folks. I'll pass this info along.

[Harsh_77 718]

You can't do AOS from EWI (enter without inspection). So yes, attorneys are correct, she needs to go home, get spousal visa, and then apply for waivers to get back (spousal visa will be denied - USC applies for hardship waiver to overturn denial). You can only do AOS with a legal entry.

+1 on this if you entered as illegal that is without inspection you cannot file for AOS.

[JimVaPhuong 4,863]

The law is different from the reality on the ground. Do a google search on "John Morton" and "prosecutorial discretion" and you'll see that there are many shades of gray. Not the way I'd ever do things, but by virtue of now being plugged-into the immigrant community, I've seen some results that I'd never have expected. An excellent, and well-connected lawyer is a prerequisite and expect to pay five figures to get it done.

John Morton's memo on prosecutorial discretion" has to do with decisions by ICE whether to initiate removal proceedings. It doesn't provide any alternative pathway to legal status. There's nothing a high paid lawyer can do to circumvent the EWI. Any solution would have to be consistent with the law. There are very few ways to overcome the EWI without leaving the US - cancellation of removal, 245(i), VAWA, asylum, etc.

Yes, the law is often different from the reality on the ground - CBP and USCIS do not always initiate removal proceedings even when they have the legal authority to do so. However, USCIS can't use their discretion to adjust someone's status until they've cleared the statutory requirements first. EWI's almost always have to leave the US and enter the I-601 process at a US consulate.

[Deputy Purple 1,294]

John Morton's memo on prosecutorial discretion" has to do with decisions by ICE whether to initiate removal proceedings. It doesn't provide any alternative pathway to legal status.

Why would someone settle for having to live in the shadows (so to speak) when they actually have a path to legal presence? Besides, just because ICE decides to not initiate removal proceedings today that doesn't mean there won't be a policy change next week/month/year/etc that would override that decision.

[Arlington 5]

My comment was in response to LlamaInvasion's over-broad statement that "when they eventually do catch the person, they WILL deport him." Lawyers live to make new law. So do many judges. And (see today's breaking news about Obama's "case-by-case review" of deportation orders) so do presidents. Who would have thought 15 years ago that asylum law would now apply to battered women or transvestites? Tell the beneficiaries of these new policies that "there's nothing a high paid lawyer can do"! Obama's policy--as announced today--will, for many people who are currently under deportation orders, cancel their deportation and provide them with work permits. If you're one of these people, I would suggest hiring a high-paid lawyer right away! For those EWIs not currently under deportation orders, and who are living otherwise law-abiding lives, they now realize that they may be able to stay put--the worst that will happen is that they'll get hauled in and then be exonerated and provided a work permit. In the OP's situation, the woman has been here for 8 years already. Would anyone recommend that she voluntarily return to Central America and risk having to stay outside the USA for years when the risk in staying here may be quite low?

John Morton's memo on prosecutorial discretion" has to do with decisions by ICE whether to initiate removal proceedings. It doesn't provide any alternative pathway to legal status. There's nothing a high paid lawyer can do to circumvent the EWI. Any solution would have to be consistent with the law. There are very few ways to overcome the EWI without leaving the US - cancellation of removal, 245(i), VAWA, asylum, etc.

Yes, the law is often different from the reality on the ground - CBP and USCIS do not always initiate removal proceedings even when they have the legal authority to do so. However, USCIS can't use their discretion to adjust someone's status until they've cleared the statutory requirements first. EWI's almost always have to leave the US and enter the I-601 process at a US consulate.