Subject to Permanent Bar or Options for Waivers with Multiple EWI's?

[wonderfully_made 4]

I'm trying to find out if my husband has any options to apply for any waiver or if he must wait outside the US for 10 years before applying.  He is a Mexican citizen.  He first attempted to cross illegally to the US in 1999; he was 15 years old. He was caught and fingerprinted, but sent back within a few hours as a voluntary departure or return.  He waited a few weeks and crossed again without being caught.  He was in the US from 1999 (15 years old) to 2003 (19 years old).  In 2003, he went home for 6 months. At this time, he was 19 years old.  After staying in Mexico for the 6 months, he attempted to cross again and was caught again.  Basically the same deal as last time, he was caught and fingerprinted; they were going to set him to go before a judge, but the NTA was cancelled due to overcrowding, so he was sent back as voluntary departure again.  A couple of months later he crossed and was not caught and has been in the US since 2003.  

 

My question is complex because I've read that voluntary departures don't count as illegal entries, rather attempts, is this accurate? I've read two sides to this, so I'm not sure.  Then, I've also read that any time accrued, while a minor doesn't count.  So if the following statements are true, does that mean the only time that counts is when he crossed illegally at 19 years old in 2003 and wasn't caught, so he has accrued over a year of unlawful presence, which I believe automatically makes him subject to the 10 year bar, but I'm not sure if the voluntary departures make him subject to the permanent bar and he must leave the US for 10 years before applying for anything.  If what I read was incorrect and the voluntary returns do count as illegal entries, is this true while a minor as well, or only the time he was 19 and caught and then 19 and returned to now?  If only when he was 19, do these two make him subject to which bar?  

 

Sorry if I'm not explaining this well. At the end of the day, we just want to know if he has any options given his history.  

 

[Going through 5,671]

So in total he's crossed the border illegally 3 times, correct?

 

You have to remember that, as you say, he has been living in the US illegally since 2003.  He has now lived in the US illegally for 14 years.   Yes, he would get at least a 10 year bar for the overstay----if they choose, they can order a permanent bar given his frequent illegal crossings before...since he showed a complete disregard for US law by crossing illegally again a week after the first time he was caught, and then only 6 months after the second time he was caught.

 

What year did you marry him?  Why haven't you filed for an AOS since your marriage?

 

[wonderfully_made 4]

He has crossed a total of 4 times and was caught twice.  He crossed twice in 1999, one of those time he was caught and voluntary returned.  Same in 2003. 

 

We were married in 2011.  I'm sorry; what is an AOS?

[Frage 67]

If he wasn't inspected he doesn't qualify for AOS. Someone correct me if I'm wrong. It would probably best for him to leave and file IR1 for him. 

[Going through 5,671]

Just now, Frage said:

If he wasn't inspected he doesn't qualify for AOS. Someone correct me if I'm wrong. It would probably best for him to leave and file IR1 for him. 

Oh good catch, hadn't thought about the "inspected" part....

[wonderfully_made 4]

Okay, I just looked up, AOS, adjustment of status.  We have considered filing an i130 several times; however, the waiver question (which I believe is the next step) always stops us.  Is there a benefit to applying the i130 if we can't then proceed with the process. I thought the i130 basically only says he isn't a criminal and the marriage is valid and gives us permission to proceed.  What am I missing?

[Going through 5,671]

3 minutes ago, wonderfully_made said:

He has crossed a total of 4 times and was caught twice.  He crossed twice in 1999, one of those time he was caught and voluntary returned.  Same in 2003. 

 

We were married in 2011.  I'm sorry; what is an AOS?

Adjustment of Status...however as someone else mentioned he most likely wouldn't qualify for this since he was never admitted into the country legally in 2003...would have to check on the requirements for that.

[wonderfully_made 4]

4 minutes ago, Frage said:

If he wasn't inspected he doesn't qualify for AOS. Someone correct me if I'm wrong. It would probably best for him to leave and file IR1 for him. 

To file the IR1, isn't the first step to file the i130?  Do you think it's best to do this from outside the US, rather than in the US, is that what you are suggesting?  Just want to be sure I understand. Thanks! 

[Going through 5,671]

Immigrants Who Have Illegally Crossed the U.S. Border More Than Once

You should definitely see an attorney about your hope to immigrate based on marriage to a U.S. citizen if you have entered the U.S. without inspection two or more times and

• your total amount of unlawful time in the U.S. totals one year or more; or

• you were removed (deported) from the U.S. and then came back illegally.

Such would-be immigrants may be permanently "inadmissible" to the United States. It doesn't matter that they are married to a U.S. citizen. The only thing they can do is to wait ten years since they last left the U.S. and then hope the government will allow them to apply to come back. 

 

http://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter11-7.html

[wonderfully_made 4]

10 minutes ago, Going through said:

So in total he's crossed the border illegally 3 times, correct?

 

You have to remember that, as you say, he has been living in the US illegally since 2003.  He has now lived in the US illegally for 14 years.   Yes, he would get at least a 10 year bar for the overstay----if they choose, they can order a permanent bar given his frequent illegal crossings before...since he showed a complete disregard for US law by crossing illegally again a week after the first time he was caught, and then only 6 months after the second time he was caught.

 

What year did you marry him?  Why haven't you filed for an AOS since your marriage?

 

So in your opinion, he would definitely be subject to the 10 year bar and possibly permanent and we wouldn't know until we applied for the 601A for the 10 year, right?  Then, if we apply for the 601A for the 10 year bar and they deny, do they say then he is subject to permanent or would they typically approve and then at the visa visit in Mexico tell him he is subject to the permanent bar?   I guess I'm trying to figure out how we find out if they say 10 year only or permanent?  I guess it's kind of just a grey area that is up to the person reviewing the application?

[Going through 5,671]

5 minutes ago, wonderfully_made said:

To file the IR1, isn't the first step to file the i130?  Do you think it's best to do this from outside the US, rather than in the US, is that what you are suggesting?  Just want to be sure I understand. Thanks! 

As soon as he left he could incur a 10-year or permanent ban if he attempted to cross illegally again and was caught, or denied at the border with the 10 year ban even if he tried crossing legally, depending on how he is approached at customs about his past "visits".  Just so you are aware.

This is not a DIY case, you need a good immigration attorney, I think, if you want to apply for benefits for him, since he's here illegally now.

Edited September 18, 2017 by Going through

[wonderfully_made 4]

2 minutes ago, Going through said:

Immigrants Who Have Illegally Crossed the U.S. Border More Than Once

You should definitely see an attorney about your hope to immigrate based on marriage to a U.S. citizen if you have entered the U.S. without inspection two or more times and

• your total amount of unlawful time in the U.S. totals one year or more; or

• you were removed (deported) from the U.S. and then came back illegally.

Such would-be immigrants may be permanently "inadmissible" to the United States. It doesn't matter that they are married to a U.S. citizen. The only thing they can do is to wait ten years since they last left the U.S. and then hope the government will allow them to apply to come back. 

 

http://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter11-7.html

Thank you!  Yes, we have actually contacted several attorneys and to be honest, each one has given us different answers, so I was looking for more opinions before we make major life decisions.  Some attorneys have said must wait outside 10 years; some have said we can apply for the waiver here and have a chance; some said that we apply for 601a here, get denied then go to Mexico for one year and apply for 601 there, so it seems the answers are all over...which is why we haven't made an actual decision yet.  Thank you for your help! 

[Going through 5,671]

5 minutes ago, wonderfully_made said:

Some attorneys have said must wait outside 10 years; some have said we can apply for the waiver here and have a chance; some said that we apply for 601a here, get denied then go to Mexico for one year and apply for 601 there, so it seems the answers are all over...which is why we haven't made an actual decision yet.

There's more than one option to him (and you) which is why the answers may have seemed "all over the place".

Is he working in the US illegally as well since 2003?  Has he paid taxes in the US?  That will be a factor as well to consider when applying for immigration benefits...

[wonderfully_made 4]

Just now, Going through said:

There's more than one option to him (and you) which is why the answers may have seemed "all over the place".

Is he working in the US illegally as well since 2003?  Has he paid taxes in the US?  That will be a factor as well to consider when applying for immigration benefits...

Well, I wish we knew the best option! Yes, he has worked since he has been here and paid taxes each year.   

[Going through 5,671]

3 minutes ago, wonderfully_made said:

Well, I wish we knew the best option! Yes, he has worked since he has been here and paid taxes each year.   

Hopefully he never claimed legal status on the IRS forms....not trying to scare you, just thinking of all the stuff USCIS takes into consideration in cases like his.