USC Husband of Mexican DACA recipient. How to adjust status?

[hmhubby 0]

Bit of a story, but the end goal is a path to legalization for my wife.

I'll give as many details as I can remember, and apologize ahead of time if some of the wrong terms are used or the dates are off by a year.

My wife came with her family to the US from Mexico without inspection when she was 10 back in 1993. Her parents applied for asylum which was denied, and a deportation order was given to each member of her family including her in 1995. To the best of my knowledge, neither my wife nor her family learned about the deportation order until ~2001 due to having a crappy attorney. Nonetheless, her family left back to Mexico in early 1997 and returned later that year, without inspection.

Around 2001, my wife submitted an I-130 for a previous marriage. I believe it was approved, though I might be thinking about some other related form. Basically she has a letter from the govt saying that they agree that her marriage was legit. She also has another letter, though, saying that something else was denied (possibly the I-130), because she didn't declare the deportation order that she didn't know she had (the notice was how she found out about it.) The marriage did not last (luckily for me), and the rest of the process went nowhere.

Fast forward to 2012, when my wife and I got married after being together for nearly 4 years. In 2013 she applied for and received DACA, which was renewed last fall.

Other than DACA, we haven't yet filled out any other paperwork. So I need to know where we should start, and what the process should look like. I imagine that we would start with the I-130, but I have no idea where to go from there.

Thanks.

[Ryan H 3,812]

Because she entered without inspection, she has no status to adjust from.

You start with the I-130, you will eventually need to file an I-601A. Once that has been dealt with, she will need to go back to Mexico for an interview.

[Boiler 45,538]

First thing is to make sure she is not 9C, then get AP, quick trip to Mexico and adjust in country.

[EM_Vandaveer 2,408]

First thing is to make sure she is not 9C, then get AP, quick trip to Mexico and adjust in country.

^^^^^ This, 100 times this.

For the making sure she is not 9C part at least, you need a competent immigration attorney.

Because she entered without inspection, she has no status to adjust from.

You start with the I-130, you will eventually need to file an I-601A. Once that has been dealt with, she will need to go back to Mexico for an interview.

Wrong. She has DACA, so if she does not fall under 9C (they first have to make sure of this), she should get AP, visit Mexico briefly, come back to the US and file AOS based on the parole entry.

[hmhubby 0]

First thing is to make sure she is not 9C, then get AP, quick trip to Mexico and adjust in country.

^^^^^ This, 100 times this.

For the making sure she is not 9C part at least, you need a competent immigration attorney.

Thanks, we'll look into that first, I guess.

There's definitely a lot of confusion around the permanent bar, and whether it would apply to her given her departure and reentry dates and the fact that she was a minor. Minors don't accrue unlawful presence for purposes of the 10-year ban, but then there's a 2009 memo saying that minors do accrue unlawful presence for purposes of the permanent bar. Then there's also the fact that we're not even sure if USCIS even knows that they left and reentered, and whether it would be smart to disclose it (i.e. whether they would find out.) I'm personally not a fan of lying or omitting truth like that, but given that I disagree that children like her could have had mens rea to reenter (forgetting whether they did or could have said "no" to their parents), I would consider not telling them as a form of silent protest and "sticking it to the man".

All in all, though, it's definitely something we'll have to discuss with an attorney.

[newacct 688]

Nonetheless, her family left back to Mexico in early 1997 and returned later that year, without inspection.

One key piece of information is whether this re-entry "later that year" was before or after April 1, 1997. If before, no 9C. If after, it seems likely there is 9C ban.

[Boiler 45,538]

There is a pass on illegal presence for the ban but not for 9C.

Details can be quite important.

[EM_Vandaveer 2,408]

Thanks, we'll look into that first, I guess.

There's definitely a lot of confusion around the permanent bar, and whether it would apply to her given her departure and reentry dates and the fact that she was a minor. Minors don't accrue unlawful presence for purposes of the 10-year ban, but then there's a 2009 memo saying that minors do accrue unlawful presence for purposes of the permanent bar. Then there's also the fact that we're not even sure if USCIS even knows that they left and reentered, and whether it would be smart to disclose it (i.e. whether they would find out.) I'm personally not a fan of lying or omitting truth like that, but given that I disagree that children like her could have had mens rea to reenter (forgetting whether they did or could have said "no" to their parents), I would consider not telling them as a form of silent protest and "sticking it to the man".

All in all, though, it's definitely something we'll have to discuss with an attorney.

You should never lie to immigration and it's a violation of the Terms of Service of this website to advise you to break any law.