Help! Is it possible to apply for AOS for my undocumented husband?

[Ian H. 207]

This was a response to a previous post. I was 3 in 1994 when my father was deported. He entered the country as an LPR after 9/11.

You were 3 years old after 9/11? So you are, like, 15 years old?

The lawyer cost $1000 back in 1994 when he was deported, he entered the US after 9/11 as an LPR after having filed a waiver at the consulate.

" According to my mom it only cost her $1000, this was back in 1994 so prices have gone up. If my dad was able to get a green card after coming in with fake papers and getting caught, your case should be easier, but consult a lawyer to take the safest route."

Was it in 1994 or after 9/11?

[Ian H. 207]

I am aware that it is the same waiver, however he should be able to file it together with his AOS petition. The instructions clearly state that "any AOS" applicant can file the waiver. At the end of they day the IJ has discretion, because one has to go before an IJ before you can be deported. Violating that is a violation of the due process clause of the 14th amendment. And if he was deported before, unless I confusing this with another post lol, without a trial he can countersue for failure of due process. Everyone has the right to a trial even if you are here illegally. You HAVE to be declared an illegal alien by an IJ before you can get deported period. Also the waiver may have gotten more difficult over the years, but not impossible. We do not know this couple's overall situation to make a determination and we are also not immigration lawyers. However, I would rather giver her advice that she can use to her advantage and go speak to an attorney and not be afraid to do so.

This is the waiver we have been speaking of. An I-601 for extreme hardship to the US citizen/LPR. He can't just "file for a green card". There is a process that must be followed. But depending on the circumstances he might not be eligible for a waiver for 10 years. The difficulty is in the details. Just because you come on here saying he can do it does not change the law. And the laws have changed a lot since your father received his green card.

My response was not "biased" it was a statement of fact.

[Mariam&Smith 45]

This was a response to a previous post. I was 3 in 1994 when my father was deported. He entered the country as an LPR after 9/11.

So your dad was granted LPR when he was outside of the States. OP's spouse is in the States currently, so there is no way he AOS inside the States. If you read thoroughly, their case is not simple at all.

[Ian H. 207]

That's because my mother was an LPR at the time and immediate relatives of LPR's don't qualify for AOS, unless a visa number is available. I should add, my father's papers were delayed by his IJ for an additional year as his punishment. Also, I didn't say the case was simple, I said that it may be easier because of the fact that she is a USC and because they are both here in the US and may get an officer with more respect for the law, usually. Consuls have full discretion and they can usually deny you if they feel like it. He may have to leave the country and apply at a consulate, but this is why he should see an attorney because he may not have to. Sometimes they tell you to leave just to make your life more impossible and delay your case further. I personally believe the case gets more complicated once the spouse leaves the country, because at that point no one can guarantee him a green card. At the end of the day he is eligible for a waiver it's just a matter of proving legitimate hardship at that point.

So your dad was granted LPR when he was outside of the States. OP's spouse is in the States currently, so there is no way he AOS inside the States. If you read thoroughly, their case is not simple at all.

[belinda63 3,047]

He entered without inspection. He was removed from the country. He entered the US again and is still here. He has no status in the US. He has never been legally admitted. Therefore, at some point, he will have to leave the US. She can file the I-130 and the I-601a waiver but he will have to be processed for his visa outside the US. He cannot adjust status as he has no status to adjust.

And the law regarding a second entry after deportation says that he might have a life-time ban with no waiver available for at least 10 years. Again not enough details to say if this applies or not.

[Ian H. 207]

They should let him apply for a provisional waiver and then apply for the visa outside the US. This is why it's best to consult an immigration lawyer because if he leaves and then his waiver is turned down, then what? I've seen many marriages ruined because of the waiting and uncertainty, my mother always said the INS were to blame for hers and my dad's separation. I sure wouldn't leave unless I know for sure I won't get turned down. Who's foolish enough to believe the government's word? lol

He entered without inspection. He was removed from the country. He entered the US again and is still here. He has no status in the US. He has never been legally admitted. Therefore, at some point, he will have to leave the US. She can file the I-130 and the I-601a waiver but he will have to be processed for his visa outside the US. He cannot adjust status as he has no status to adjust.

And the law regarding a second entry after deportation says that he might have a life-time ban with no waiver available for at least 10 years. Again not enough details to say if this applies or not.

[Boiler 46,033]

Wow what a load of ####### from those who have no clue.

On the basis of the limited info the OP gave sounds like he is 9 C, lifetime ban waiverable after 10 years outside the country.

There may well be other issues as well of course.

A consultation with a Lawyer is always a good idea in these sort of cases.

[Nick92707 0]

I appreciate all the responses to my question. Several things have been clarified, and I will keep in mind everything that you have added to this discussion. I will consult with an attorney before making a move. The marriage is legit, I would face great hardship if he leaves because I have a major back problem.

The thing that has me thinking is whether it makes a difference if a judge removed him from the country or whether he voluntarily exited the country. I understand that either way it is possible, likely, that he has a life time ban.

[Boiler 46,033]

If he was deported he would need a I 212 as well as an I 601.

The waiver is not really an issue, the bar is pretty low, it is whether he is eligible to apply.

Was it Voluntary Departure or he just went back f his own accord.

[MacUK 983]

my mother always said the INS were to blame for hers and my dad's separation.

No offence, but how are the INS to blame for your father trying to use someone elses passport?

[Hypnos 6,578]

It sounds as if a 9C lifetime bar is in play, as Boiler and others said.

If this is the case, the earliest you can apply for a waiver is after ten years, as stated, and time spent in the US does not count towards the ten years (obviously).

Edited July 23, 2014 by Hypnos

[Ian H. 207]

I never said that they were to blame for his getting detained for using someone's passport, but rather that they are to blame for the separation of many families(including my own) due to the long wait times and bureaucratic process. He was only barred for 1 year by the IJ for that, however his priority date took 6 years to become current because my mother was an LPR. Had she been a USC he only would have had to wait that year plus the actual process. That is why they came up with the V visa because it was unfair to LPR families that went years apart because of visa number availability. It would be foolish of me to blame them for punishing him because he came with a fake passport.

No offence, but how are the INS to blame for your father trying to use someone elses passport?

[averageguy6 22]

You are seriously misinformed. Sorry.

If you enter the USA with "fake papers" you will likely receive a lifetime ban with no waiver possible.....especially if he had a fake passport or the "fake papers" said that he was a citizen or PR

" According to my mom it only cost her $1000, this was back in 1994 so prices have gone up. If my dad was able to get a green card after coming in with fake papers and getting caught, your case should be easier, but consult a lawyer to take the safest route."

Was it in 1994 or after 9/11?

[Ian H. 207]

Because my father didn't try to enter the country with a fake passport and he didn't get his waiver approved right? You obviously haven't read the instructions on form I 601. Immigration fraud and/or misrepresentation can be waived, but you have to prove extreme hardship. As I stated before that was proved in my father's case due to the fact that he had a pregnant LPR wife and one child in the country. That in and of itself proved extreme hardship. By the way lifetime bars usually apply to certain crimes and not to simply entering the country illegally, even if more than once. He may have to leave the country and be subject to a 10 year bar, however he would be eligible for a waiver of that bar if he can prove extreme hardship. We do not know all of the facts of their case and we are not immigration experts or lawyers, that is why I informed the OP to consult a lawyer. So therefore I seem to be much more informed than you because I know a waiver is possible, difficult but possible nonetheless.

You are seriously misinformed. Sorry.

If you enter the USA with "fake papers" you will likely receive a lifetime ban with no waiver possible.....especially if he had a fake passport or the "fake papers" said that he was a citizen or PR

[averageguy6 22]

A lot of this depends upon dates so lets not get confused here...Im not a lawyer...I was responding to a particular post...

I put some references from immigrate2us and Laurel Scotts website to clarify this....I was responding to the person saying that since it was easy for their father to get a greencard after using false papers, then it would be easy in the OP case also...that is misinformed.....see below....

Entering without inspection after recently being deported will get you a ban that can not be waived for various numbers of years....

At this time, and since late 1996....Impersonation of a US Citizen, to any govt agency for any purpose, even trying to vote...WILL get you a lifetime ban with NO waiver possible.....EVER....

This includes using a false US passport or someone else's passport, a false BC, or verbally claiming to be a USC, or even getting waived through at the border....

Now...Prior to 9/30/2016....it was considered just misrep and could be waived....must be your dads case...good...

So...at the time your father did it the law was different and you could get a waiver as at that time it was considered same as misrep....

Yes, there is a 601waiver possible for many types of misrep...but not anymore for false claims to US Citizenship... gets you a lifetime ban with no waiver possible....

Some bans "simple from entering the country illegally" can NOT be waived for several years such as illegal presence for 1 year or more (after 04/01/1997) after a deportation.....

9C: EWI after Unlawful Presence or Removal

If a person has been unlawfully present for more than a year after April 1, 1997 and subsequently enters or attempts to enter without being inspected, the person is not only inadmissible under INA §212(a)(9)©(i), but is ineligible to apply for a waiver for ten years from the date of next departure. Likewise, if the person has been removed or departs under an outstanding order for removal including prior to April 1, 1997, and subsequently enters or attempts to enter without inspection after April 1, 1997, the person is inadmissible under INA §212(a)(9)©(i)(ll) and ineligible to apply for a waiver for ten years from the date of next departure. It is very important to be mindful of this ground of inadmissibility due to the unavailability of a waiver for ten years from the date of next departure.

See below....from Immigrate2US.

WHAT "COUNTS" AS A FALSE CLAIM TO US CITIZENSHIP AND WHAT CAN BE DONE TO FIX IT?


COMMON WAYS TO FALSELY CLAIM US CITIZENSHIP:

• Using a US passport
• Using a US birth certificate
• Verbally claiming to be a US citizen
• Registering to vote

LESS COMMON WAYS TO FALSELY CLAIM US CITIZENSHIP:

• Checking the US Citizen option on an I-9 or any other forms, government related or not
• Being "waved through" at a Port of Entry / Someone in a group claiming to be a US citizen and the officer assumes everyone is a US citizen

THE BAD NEWS:

There is no immigrant waiver available for false claims to US citizenship. It is a permanent ban.


EXCEPTIONS:


FALSE CLAIMS OF USC PRIOR TO SEPT 30, 1996:

This situation is treated differently because the law related to fraud/misrepresentation/false claims changed on that date due to the 1996 US Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA 1996) enacted on September 30, 1996, which is the last time there was major immigration law reform.

According to the AFM (Adjudicator's Field Manual) a false claim of US citizenship made before that date is treated as a regular fraud/misrep inadmissibility. This means that first, the false claim had to be made for an immigration benefit to trigger an admissibility, and second, although it's a lifetime ban, there is a waiver available immediately.

If you know or believe you made a false claim prior to September 30, 1996 it's essential that you talk to a knowledgeable and trustworthy attorney about your case before making any conclusions.

Get a lawyer...its going to a be long haul...maybe you dont fit the criteria...maybe you do.