The 3 Year Ban Dilemma

[JimVaPhuong 4,863]

Dear JimVaPhuong Unfortunately I did enter the U.S. illegally! However I do not know if the lawyer knows that I was not here yet at the the time to be able to qualify for the 245(i). The issue is that my parents were the ones that originally talked to her and I think that they did not know to ask the right questions. This is why I need to talk to her personally so that I can ask how she is handling my case. I will also ask if she knows the fact that I would not be able to qualify for a 245(i) since I entered the U.S. after the cutoff date. Dear Hypnos I also do know about the DREAMers provision and I do definitely qualify for that.

Except for some extremely rare exceptions, the only options available to an EWI are 245(i) and VAWA. You aren't eligible for 245(i), as we've already covered. VAWA would require that you were abused by a US citizen or LPR spouse or parent in the US.

There is currently no other route for you to obtain a green card without leaving the US and incurring the ban.

Bear in mind that Obama's directive to the Justice Department is temporary. It doesn't change the law. He issued the directive in the middle of a presidential campaign in order to pander to Hispanic voters. Once the election is over he won't need those voters anymore. If he's not reelected then it's almost certain that order will be rescinded in January.

The fact is that Obama could have issued that order the day he took office, but he didn't. In fact, his administration has deported more people than any previous administration in the same amount of time. I recommend you don't rely on this as a semi-permanent solution, or hope that this will lead to something permanent. Start thinking about more realistic options. You can get a green card if you either serve out the ban or qualify for a waiver. The sooner you get started, the sooner you'll be finished.

I guess that the price I have to pay right? I know that I can still apply for the DREAMers provision recently passed which would give me a work permit for two years! If I cannot adjust my status through my dad then I will wait for my brothers petition to become to become current.

You won't be able to adjust status based on your brother's petition either. First, unlawful presence is only forgiven for someone who is adjusting status in an immediate relative category, which means the spouse, parent, or unmarried minor child of a US citizen. Siblings of a US citizen are not in an immediate relative category - they're family preference category F4. Second, even immediate relatives must have entered the US legally in order to adjust status. EWI's aren't eligible.

[JayT1151 0]

The provision will do for now since I do not want to leave the country since I am studying. I did more research and found out that my dad can no take the citizenship test in our native language since he is 55 years old and has completed more than 15 years with his residency! So I guess the provision will do for now! Once again thanks for the advice!

[JimVaPhuong 4,863]

The provision will do for now since I do not want to leave the country since I am studying. I did more research and found out that my dad can no take the citizenship test in our native language since he is 55 years old and has completed more than 15 years with his residency! So I guess the provision will do for now! Once again thanks for the advice!

This information changes nothing. It just means your dad can take the civics test in Spanish.

Again, the deferred action policy amounts to nothing more than a "stay of execution". It doesn't change the law. It just instructs DHS not to enforce the law for a limited period of time. This policy can protect you from deportation, but it won't ever lead to a change in your status. Because this policy was politically motivated you can expect the executive order to be rescinded eventually, possibly as soon as next January. The downside for everyone who participates in this program is that they will no longer be flying under the radar - USCIS and ICE will know who and where you are when the deportations resume.

It's going to be a long time before you'll be getting a green card through either your brother or your father. You have three years before the priority date on your brother's petition will be current, and 17 years (give or take) on your father's petition (presuming he becomes a US citizen). In either case you'll have to go to Juarez for a visa interview because of the EWI. If you apply for a visa based on your brother's petition then you have no choice except to wait out the 10 year ban. Your dad could apply for a waiver of that ban, but the 17 year wait for a visa number kind of makes the whole thing a wash. Maybe you'll get lucky and marry a US citizen. You'll still need to leave the US for the visa interview, but at least you wouldn't have to wait for a visa number to become available.

[JayT1151 0]

Okay glad you clarified that thanks once again!