Why do certain people stay and others have to leave.

[gael11_2012 0]

Why do certain people have to leave to their country of origin, and others can be here in the US illegaly and still become permanent residents. Who needs to leave and who stays? Those who stay have visa from their country? Those who stay entered legally? How is it?

[HeatDeath 430]

The way a person enters the US has a big effect on whether or not they can eventually adjust their status to permanent residence, and under what circumstances.

If a person entered the US "without inspection" - they walked in through the wilderness or were snuck in - they have no path to permanent residence. Their best bet would be to sneak back out, enter through some kind of legal status and hope they stayed far enough "off the grid" that their illegal presence won't be detected during a subsequent visa or AOS application. [Very unlikely!]

If a person entered the US on a legal nonimmigrant, non-fiance status - say, a tourist visa - and overstayed, they can adjust status to permanent resident only if they subsequently become an immediate relative [e.g. spouse] of a US citizen. This is allowed only as a courtesy to the US citizen, exposes them to lots of official scrutiny and unofficial hostility, and is quite risky - if the AOS is denied there is frequently no appeal, as there would be had the person gone through the proper channels and procedures. In this circumstance, leaving the US and reentering using a proper spousal visa is much more reliable, but may be impractical if the person has been in the US long enough to trigger a bar.

The safest, most secure way to attain US residence as an immediate relative of a US citizen is to get the proper visa, enter, and go through proper channels to adjust status.

[JimVaPhuong 4,863]

Why do certain people have to leave to their country of origin, and others can be here in the US illegaly and still become permanent residents. Who needs to leave and who stays? Those who stay have visa from their country? Those who stay entered legally? How is it?

Section 245 if the INA requires that an alien has been inspected and either admitted or paroled into the United States in order to be eligible for adjustment of status. This means they must have presented themselves to a CBP officer when they entered the US, and the CBP officer had to approve them for admission or parole. Someone who enters illegally has not been inspected, and has not been either admitted or paroled, so they are not eligible to adjust status.

There is a major exception to this rule for VAWA self-petitioners. They aren't required to have been inspected, admitted, or paroled. However, they must prove they married a US citizen or LPR, they must prove they entered the marriage in good faith, and they must prove that they were subjected to abuse or extreme cruelty by their spouse while in the United States. Obviously, if they entered illegally then their evidence will be heavily scrutinized.

Another exception is INA section 245(i). This allows someone who entered illegally to be eligible to adjust status if they were present in the United States on December 31, 2000, and if an approvable petition was filed for them before April 30, 2001. This is commonly referred to as the LIFE Act, also known as the Reagan amnesty program. An alien who meets these requirements must have a CURRENT petition they can use as the basis for adjustment of status, and they must pay a $1000 fine in order to have their EWI entry overlooked. There aren't many people left who are eligible to take advantage of the LIFE act, and haven't already applied.

[Penguin_ie 5,993]

**** Moving from AOS from Family to General Immigration Discussion as not related to the AOS process but to general immigration policy ****

[kcoyclay1 98]

The way a person enters the US has a big effect on whether or not they can eventually adjust their status to permanent residence, and under what circumstances.

If a person entered the US "without inspection" - they walked in through the wilderness or were snuck in - they have no path to permanent residence. Their best bet would be to sneak back out, enter through some kind of legal status and hope they stayed far enough "off the grid" that their illegal presence won't be detected during a subsequent visa or AOS application. [Very unlikely!]

If a person entered the US on a legal nonimmigrant, non-fiance status - say, a tourist visa - and overstayed, they can adjust status to permanent resident only if they subsequently become an immediate relative [e.g. spouse] of a US citizen. This is allowed only as a courtesy to the US citizen, exposes them to lots of official scrutiny and unofficial hostility, and is quite risky - if the AOS is denied there is frequently no appeal, as there would be had the person gone through the proper channels and procedures. In this circumstance, leaving the US and reentering using a proper spousal visa is much more reliable, but may be impractical if the person has been in the US long enough to trigger a bar.

The safest, most secure way to attain US residence as an immediate relative of a US citizen is to get the proper visa, enter, and go through proper channels to adjust status.

If the spouse entered legally, the marriage is in good faith, and it can be proven, there should be no hostility; however, that's not always the case. Some IOs do not approve and investigate with a fine-tooth comb to weed out "advantage takers". USCIS allows immediate relatives of US citizens to adjust in the same manner a K1 would; just under different circumstances. They are two different processes and are understood as such. The proper manner is relative. If someone is overstayed their visa, met someone, fell in love, and get married, USCIS understands that returning to their country of origin would cause a ban and disrupt the relationship. That's why they allow AOS while in the US. On the other hand, if a visitor is in status, met US citizen, fell in love, and desires to marry, the right thing to do us to return to their country and file K1. There is no ban on their visa and they can easily pick up on their relationship with plans to visit and marry. That's not possible for those who have overstayed.

The right way is based on how USCIS allows immediate relatives/fiancée/fiancé, in status/out of status individuals to adjust. K1s are denied as well as IRs if proof isn't substantial.

Edited March 19, 2012 by kcoyclay1