What is the process when a USC marries someone who came to the USA illegally?

[panamania79 2]

What is the process for someone who married a USC,filed the required paperwork and just before they do the I-485,they experience an ugly breakup.They have a child together also.

[Hypnos 6,576]

Process for what? And from which point of view?

[belinda63 3,038]

Is this about someone other than you? You are stating the person in question came to the US illegally, do you mean without inspection i.e. they snuck into the US? Do you mean prior to the AOS interview? Based upon a lot of conjecture on my part, if the USC withdrew the affidavit of support or refused to go to the AOS interview the intending immigrant cannot obtain a green card through that path.

[Caryh 5,206]

Failing to file the I-485 means they are not a legal resident and legally can no longer stay. Not filing and completing the I-485 means they have not filed all the paperwork required. It does not sound like they care if they are an illegal in any case, and they entered illegally to begin with. But they no longer have a path to become a legal resident.

[panamania79 2]

Let me elaborate.Man comes here illegally,marries a USC,they have ,a child together,they file paperwork and the man receeives his work authorizationn only.They separate,the letter from USCIS states the petition was approved but he cannot remove conditions because he entered the US illegally.My question is,what can he do now?

[Sandra G. 5,047]

There is something missing in your story ,you said "the petition was approved but he cannot remove conditions because he entered the US illegaly", first of all if he is removing conditions it means he has a green card and if he has a green card he did not enter without inspection. Maybe you want to say his green card petition was denied right? removing conditions is completely different of filing adjustment of status,if his green card was denied because he entered without inspection then Uscis will start with removal proceedings against him and he will receive a NTA(notice to appear) to appear in the Immigration Court, and he has no grounds to stay here it means he will be deported.

[Caryh 5,206]

Let me elaborate.Man comes here illegally,marries a USC,they have ,a child together,they file paperwork and the man receeives his work authorizationn only.They separate,the letter from USCIS states the petition was approved but he cannot remove conditions because he entered the US illegally.My question is,what can he do now?

You stated they have yet to file the I-485, this would give him a green card and a legal resident status. Removing Conditions is a process of removing the conditional status of a green card obtained through marriage. An EAD, or employment authorization is not legal resident status, and would become void the day he received a denial on the case. A waiver would have needed to also be applied for, before he could obtain the green card. I think you're using the incorrect terms in regards to his case.

To me it sounds like a waiver for his illegal entry has not been granted and/or his green card was never issued, in fact currently has been denied. This means his EAD, Employment Authorization, is no longer valid. The child you keep bringing up means absolutely nothing to the case, until the child is an adult and old enough to petition him as his parent.

Without his spouse, the man no longer have a valid way to obtain a waiver for the illegal entry and stay, or to obtain his green card.

Had he obtained the waiver, and obtained the green card, then he could remove conditions on the two year green card on his own. He would need to prove the marriage was a valid marriage and not used to obtain immigration benefits, but many do that every year.

[panamania79 2]

He only has a work authorization.The letter says he is not eligble for removal of conditions so now he just wants to know what his options are now.No it's not me,it's somebody I translate for!

[JohnR! 5,495]

He only has a work authorization.The letter says he is not eligble for removal of conditions so now he just wants to know what his options are now.No it's not me,it's somebody I translate for!

He should contact the USCIS and find out on what grounds his ROC was denied. Have him set up a Infopass with USCIS and talk to someone in person, so he can have the interview in his language.

His entire case hings on what he means by coming to the US illegally. If, as another poster said, he entered the US with no visa he may be eligible for deportation, which indicates his temporary green card was issue by mistake.

If he only has his EAD, then it means the USCIS has ultimately denied his request for residence based on his entering the US without inspection, in which case he will need to return home to complete his immigration visa.

Good luck!

[Caryh 5,206]

He only has a work authorization.The letter says he is not eligble for removal of conditions so now he just wants to know what his options are now.No it's not me,it's somebody I translate for!

His work authorization is no longer valid, based on the denial. It doesn't matter what the expiration date says, a denial immediately terminates his EAD card's validity. His options are return to his home country or be deported. He has no legal path for staying in the USA. Unless he was brought here as a minor, and qualifies for delayed action and just happened to also marry a citizen.

[panamania79 2]

The letter he received from the USCIS stated that his petition was approved but he cannot remove conditions.I also wonder why they issued a work authorization in the first place,it doesn't really make sense.

[JohnR! 5,495]

The letter he received from the USCIS stated that his petition was approved but he cannot remove conditions.I also wonder why they issued a work authorization in the first place,it doesn't really make sense.

That is where his story does not make sense. In order to remove conditions he would need a temporary two-year greencard. The work authorization would have been given initially when one applies for adjustment of status and before he would have received his temporary greencard. His story reds backwards. He is not giving your the whole picture.

[Merrytooth 5,748]

Yes, the story does not make sense..

But I think I-130 and work authorization form had been filed, hence the I-130 petition was approved?

[Hypnos 6,576]

Since he entered illegally, he cannot adjust (unless doing so based on a 245(i) adjustment, which he looks unlikely to qualify for).

There is probably a mis-translation somewhere, to where "remove conditions" = I-485.

In these circumstances, the I-130 would be approved but the I-485 would be denied (as it seems it has been). Any work authorisation or AP based on that I-485 would have been immediately invalidated, also.

He should consult with an experienced immigration attorney to discuss his options, which will probably involve seeking an immigrant visa outside the US, and he would probably need to file a waiver, too.

Edited August 5, 2013 by Hypnos

[Caryh 5,206]

The letter he received from the USCIS stated that his petition was approved but he cannot remove conditions.I also wonder why they issued a work authorization in the first place,it doesn't really make sense.

What exactly was written on the letter? You keep using terms that do not belong together, confusing the entire issue.

Petition - petition for what? There are many different petitions that can be made to USCIS.

Remove Conditions - You cannot remove conditions unless you have a green card.

Work authorization - There is no work authorization, there is an EAD or Employment Authorization Document. The EAD is pretty much an automatic when the I-485 is applied for if you include form I-765. It is normally valid for one year, or until the green card is granted or denied.

Was he working on the waiver but failed to meet the conditions of returning to his country to complete the waiver and visa?

Someone with an illegal entry cannot finish the process without returning to their home country at some point to finish it at the USA Embassy in their country.

Someone with an overstay can finish it in the USA. But in every case they still need their spouse's support, which it sounds like he has now lost.