245 i derivative grandfathering?

[aleful 1,905]

Although I have benefited from this law, for many it has been difficult

you cannot get a work permit under the 245i law

there are still people from Mexico and Philippines waiting for their PD to become current, since the wait is 20 years or more, and they weren't able to get an EAD, until the PD becomes current and they can submit the adjustment of status packet including the i485A and the $1000 fine

[Boiler 45,525]

Under extended DACA he could get AP and a quick trip would allow him to adjust in country.

Assuming the criminal history does not complicate matters.

[colorfulx 1]

hi hypnos

the 245i doesn't change any of the laws, the petitions are the same, the only thing that it allows you is that if you have an approvable petition, you can wait in the country and interview by paying a fine, that's all

I got my GC under the 245i, my USC mom filed for me in 1999

the petitions and categories are still the same, but instead of going through consular processing, by paying a fine you could get the GC without leaving by paying the fine. whether labor certification or family petition

since there are no derivatives in immediate relatives, that doesn't change, the only change is paying a $1000 fine instead of a waiver to get the GC in country

I know the 245i doesn't change any laws or grant you amnesty or anything, I was just under the impression that it helped a ton since you could show a relationship. I do appreciate your help!

What fine are you talking about? Sorry if I'm over looking something.

Although I have benefited from this law, for many it has been difficult

you cannot get a work permit under the 245i law

there are still people from Mexico and Philippines waiting for their PD to become current, since the wait is 20 years or more, and they weren't able to get an EAD, until the PD becomes current and they can submit the adjustment of status packet including the i485A and the $1000 fine

Ignore my last post then, I see now that your saying he could still apply for I-485. I didn't know if he could, I had looked at the actual forum online a few days ago but don't remember how I came to the conclusion that he couldn't, I think it was because he EWI.

[colorfulx 1]

Under extended DACA he could get AP and a quick trip would allow him to adjust in country.

Assuming the criminal history does not complicate matters.

I don't think the DACA is something we want to pursue because of his DUI. A DUI is considered a significant misdemeanor. Are you referring to advanced parole? I have never seen it, so I don't know what it means. But from what I gathered from wiki, it is to allow people for re-entry after they leave for a certain amount of time?

[Boiler 45,525]

If he is eligible for DACA then AP allows he to visit his sick Auntie whoever.

He will be paroled back in and can then adjust status like anybody else.

I would need to look up the rules but seem to remember you are allowed a few misdemeanours.

[colorfulx 1]

If he is eligible for DACA then AP allows he to visit his sick Auntie whoever.

He will be paroled back in and can then adjust status like anybody else.

I would need to look up the rules but seem to remember you are allowed a few misdemeanours.

I think I saw that it said it wasn't available for undocumented immigrants. I know you have to file a petition and then file for this, a long with a work permit - so I don't know if that was line was just saying if you don't have an approved petition filed on your behalf prior to filing for advanced parole you can't file an AP.

You all here really know your stuff, I didn't even know such a thing existed. I basically only know of very few forums: I-130, I-485, I-765 & I-601A & 1-601. To me it was kind of like nothing else existed.

Thank you for responding

[Hypnos 6,576]

The DACA route was going to be my next suggestion.

[colorfulx 1]

I'm afraid of the DACA because of the DUI & Domestic Assault. The DUI is considered a significant misdemeanor, even though it was over 9 years ago and was a first offense and he completed driving school and probation I just don't see that one working out good in his favor. Even if they did accept the DUI, I think a domestic assault would knock him out of that (even though it was an altercation with another male, who had been a previous roommate. He pled guilty to the crime but was no placed on probation nor did he pay a fine) I think falls under a CIMT: An act of domestic violence.

So because of this, I don't think DACA is the way to go because he has 2 convictions, 1 of them a significant misdemeanor and the other one I believe is classified as a CIMT (An Act of domestic violence)

But I'm curious as to why you and the other both thing DACA is the way to go? Has something in law's changed that I don't know about?

Edited December 16, 2014 by colorfulx

[Hypnos 6,576]

With regards to DACA it seems you are quite correct, his DUI would be considered a "significant" misdemeanor, and possibly the domestic violence too. DACA would seem not to be an option at this time.

[colorfulx 1]

Yeah. He has a tricky case.

Edited December 17, 2014 by colorfulx

[Hypnos 6,576]

You are describing what is called the petty offence exception for CIMTs.

You qualify for this exception if all of the following are true:

(i) The maximum penalty for the specified offence (regardless of what you were personally sentenced to) is no more than one year's imprisonment.

(ii) You were personally sentenced to no more than six months imprisonment.

(iii) This is your only CIMT.

From what you have described, your husband's assault conviction does qualify for the petty offence exception.

This is somewhat good news, but it doesn't really help him file for adjustment of status any. Since he EWI'd then he still cannot file for AoS unless he is a 245(i) beneficiary.

The petty offence exception will not help him get DACA, and I think based on earlier posts that DACA is a bust for him right now.

The one thing it may help with is an immigrant visa overseas. It would involve filing the I-601A, as I mentioned above, and that is the provisional waiver that would waive his ineligibility from the overstay. Absent the CIMT (which now seems to be covered under the petty offence exception) then the overstay is his only basis of ineligibility.

So as a summary, the 245(i) would allow him to adjust status based on his marriage to you, but would require that his stepmother separately petitioned him by filing an I-130 specifically for him before April 2001. You would need to investigate that possibility.

If that didn't happen, DACA is probably a no-go based on his criminal history.

An immigrant visa may be his only shot, but is going to be time-consuming. If this is the route you choose (or is the only path available to you), you would file an I-130 for him. It would take around 8 - 10 months to be approved, and would be forwarded to the NVC. You would pay the immigrant visa fee with the NVC, and at that point would then file the I-601A provisional waiver (as well as telling the NVC that was what you were doing, so they don't send the case on to the embassy just yet). That will take around 3 - 6 months to (hopefully) be approved. At that point he would depart the US and attend his immigrant visa interview overseas. They would (hopefully) accept his provisional waiver, and make a finding that his CIMT is automatically waiverable due to the petty offence exception. He would then be approved, receive his immigrant visa, and then re-enter the US and automatically receive a green card.

Edited December 17, 2014 by Hypnos

[colorfulx 1]

I'm really happy to see that the domestic assault is not a CIMT. I find a lot of conflicting stuff online about the DUI, some websites list it as a CIMT. Not sure why.

I really do appreciate all of your posts and the time you have taken to help me. I'm just getting impatient for my consultation and need to relax. She will have all the records on hand and can tell me if the I-601A is an option.

I've known in the back of my mind that I would have to file for him, the thought of him having to leave and not able to come back scare me and I guess I was looking into all possibilities because I don't want to think about that option.

If we can file the I-601A provisional waiver, would he be in El Salvador for up to a year waiting for it to be approved after his interview?

[Hypnos 6,576]

No, you wait out the processing time of the I-601A in the US. It's only when it's approved, sent to the embassy and they then set an interview that he would actually depart.

[aleful 1,905]

hi

the i601A is filed while he is in the US

[colorfulx 1]

No, you wait out the processing time of the I-601A in the US. It's only when it's approved, sent to the embassy and they then set an interview that he would actually depart.

Oh that's amazing! So basically the time spent in El Salvador would be for his interview and then waiting to hear if it was approved or denied?

That's pretty good news! Hoping this is a possibility for us