Minor brought without inspection to US as child and now married to US Citizen

[Jim Family 4]

I have a friend that was brought to the US illegally at the age of 12 and without inspection . She is now 23 years and married to a US citizen. Can some one point me in the right direction on what would be the best path to the immigration process so you can legalize her presence in the US? Thanks 

[HRQX 4,145]

18 minutes ago, Jim Family said:

Can some one point me in the right direction on what would be the best path to the immigration process so you can legalize her presence in the US?

Only consular processing is available.

 

Whether or not a waiver (i.e. Form I-601A) is needed at the visa interview depends on if she was granted DACA (or something similar) before she turned 18 +180 days, and if she continually renewed whatever was granted to her by DHS. https://fam.state.gov/FAM/09FAM/09FAM030211.html

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DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

(1)  (U) For aliens inspected and admitted or paroled until a date specified on the Form I-94 or any extension, any period of presence in the United States up until either:

(a)  (U) the expiration of the Form I-94 (or any extension); or

(b)  (U) a formal finding of a status violation made by DHS, an IJ, or the BIA in the context of an application for any immigration benefit or in removal proceedings, whichever comes first.

(2)  (U) For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;

(3)  (U) For aliens granted "voluntary departure" (VD), pursuant to INA 240B, the period of time between the granting of VD and the date of their departure, if the alien departs according to the terms of the grant of VD;

(4)  (U) For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the From I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:

(a) (U) the alien does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and

(b)  (U) the alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:

(i)     (U) that the application was subsequently approved; or

(ii)    (U) if the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous.

(5) (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);  

(6)  (U) For aliens covered by Temporary Protected Status (TPS), the period after TPS went into effect and prior to its expiration; and

(7)  (U) For aliens granted deferred action, the period during which deferred action is authorized.

 

https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-bars-to-admissibility

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Accruing Unlawful Presence

According to section 212(a)(9)(B)(ii) of the INA, you accrue unlawful presence if:

• You are present in the United States without being admitted or paroled; or
• You have remained in the United States after the expiration of the period of stay authorized by the Secretary of Homeland Security (the Secretary). 

If you are in the United States without having been admitted to or paroled into the country by an immigration officer, then you started accruing unlawful presence on the day you entered the country without admission or parole.

In general, if you were admitted or paroled into the United States by an immigration officer, you were issued or received a Form I‑94, Arrival/Departure Record, which shows a specific date when you are required to leave. Typically, you start accruing unlawful presence if you remain in the United States after the date noted on the Form I-94. However, if you are admitted for duration of status (D/S) and your Form I-94 is marked “D/S”, then you may stay in the United States for the duration of your program, course of study, or temporary work assignment to the United States, plus any additional grace periods that may be authorized afterwards. 

In the Adjudicator’s Field Manual (AFM) Chapter 40.9.2 (PDF, 1018.03 KB), USCIS outlines when you are considered to be in a “period of stay authorized.” If you are in the United States maintaining lawful status, meet the requirements for an exception, or are otherwise considered to be in a period of stay authorized by the Secretary, then you do not accrue unlawful presence.

The law also provides exceptions for accrual of unlawful presence to the following individuals:

• Asylees: Time while a nonfrivolous asylum application is pending is not counted as unlawful presence.
• Minors: Children do not accrue unlawful presence while they are under age 18.
• Family Unity Beneficiaries: Individuals with protection under the Family Unity program, as provided under section 301 of the Immigration Act of 1990, do not accrue unlawful presence while that protection is in effect.
• Battered Spouses and Children: Self-petitioners under the Violence Against Women Act (VAWA) do not accrue unlawful presence if they can show a connection between the status violation and the abuse.
• Victims of Severe Forms of Trafficking: Trafficking victims who can show that a severe form of trafficking was at least one central reason why they were unlawfully present in the United States will not be considered inadmissible due to unlawful presence.

These exceptions apply only to the 3-year and 10-year unlawful presence bars found in INA 212(a)(9)(B)(i)(I) and (II). They do not apply to the permanent unlawful presence bar found in INA 212(a)(9)(C)(i)(I).

In addition to these exceptions provided by law, there are also some special circumstances when your lawful status may have expired or you may have entered without admission or parole, but for purposes of counting your unlawful presence towards the 3-year, 10-year, and permanent unlawful presence bars, you are considered to be in a period of stay authorized by the Secretary. When any of these circumstances described in the Adjudicator’s Field Manual, Chapter 40.9.2 (PDF, 1018.03 KB) apply, you generally are not accruing unlawful presence.

The 3-year Unlawful Presence Bar

If you are an alien and you are not a lawful permanent resident of the United States, you may be inadmissible for three years if:

• You accrued more than 180 days but less than one year of unlawful presence during a single stay in the United States on or after April 1, 1997; and
• You voluntarily departed the United States before DHS initiated either expedited removal proceedings under INA 235(b)(1) or removal proceedings before an immigration judge under INA 240.

This 3-year inadmissibility period starts when you depart or are removed from the United States. 

During this 3-year inadmissibility period, you are not eligible to:

• Receive an immigrant (permanent) visa or a nonimmigrant (temporary) visa to come to the United States;
• Adjust your status in the United States to that of a lawful permanent resident (Green Card holder); or
• Be admitted to the United States at a port of entry.

This bar does not apply to you if you accrued more than 180 days but less than one year of unlawful presence and left the United States after the commencement of removal proceedings, but before the one-year mark. Even if you are not subject to the 3-year bar in this instance, you could be inadmissible for other reasons (for example, the underlying reasons for your removal, such as criminal activity). You could also be inadmissible for failure to attend the removal proceedings and/or if the immigration judge orders you removed in absentia (even though you did not attend the proceeding due to your departure). If you leave the United States after the commencement of removal proceedings, it is your responsibility to inform the Executive Office for Immigration Review.

The 10-year Unlawful Presence Bar

If you are an alien and are not a lawful permanent resident of the United States, you may be inadmissible for 10 years if:

• You accrued one year or more of unlawful presence during a single stay in the United States on or after April 1, 1997; and
• You voluntarily departed the United States or were removed from the United States under any provision of law.

The 10-year unlawful presence bar applies whether you leave before, during, or after removal proceedings.

This 10-year inadmissibility period starts when you depart or are removed from the United States. During this 10-year inadmissibility period you are not eligible to:

• Receive an immigrant or a nonimmigrant visa to come to the United States;
• Adjust your status in the United States to that of a lawful permanent resident (Green Card holder); or
• Be admitted to the United States at a port of entry.

If you are subject to the 3-year or the 10-year unlawful presence bars, you may receive a visa and/or be admitted to the United States if you apply for and receive a waiver of inadmissibility. The legal requirements and procedures for applying for the waiver depend on the immigration benefit you seek.

The Permanent Unlawful Presence Bar

If you are an alien and you are not a lawful permanent resident of the United States, you may be inadmissible forever under INA 212(a)(9)(C)(i)(I) if:

• You accrued an aggregate period of more than one year of unlawful presence in the United States on or after April 1, 1997, and then departed the United States or were removed from the United States; and
• You entered or attempted to reenter the United States on or after April 1, 1997, without a DHS officer admitting or paroling you into the United States.

“Aggregate period” means the total number of days of unlawful presence that you accumulated during all of your stays in the United States combined.

If the permanent unlawful presence bar applies to you, you will be permanently ineligible to:

• Receive an immigrant or a nonimmigrant visa to come to the United States;
• Adjust your status in the United States to that of a lawful permanent resident (Green Card holder); or
• Be admitted to the United States at a port of entry.

Although you are permanently inadmissible under this ground, you may ask for permission to reapply for admission to the United States, but only if you have been physically outside the United States for at least 10 years since the date of your last departure. This permission is called “consent to reapply for admission” to the United States. If your application for consent to reapply for admission is denied, then you remain inadmissible on this ground. Additional information about consent to reapply is available on the Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal page.

There may be other ways to overcome this bar, depending on the immigration benefit that you are applying for. See the next section below entitled, If An Unlawful Presence Bar Applies To You, for more information.

 

Edited July 11, 2021 by HRQX

[Jim Family 4]

She never applied for DACA and has remained in the US undocumented. 

[Jim Family 4]

Does it mean that she has to go back to her country and apply from there and stay there for the 5-10 year penalty?

[Boiler 45,485]

Needs the I 601a as mentioned above

[HRQX 4,145]

3 minutes ago, Jim Family said:

Does it mean that she has to go back to her country and apply from there and stay there for the 5-10 year penalty?

Before she leaves, she should file Form I-601A. https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers "The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview." That limits the time outside US. Some lucky cases just spend 2 to 3 weeks outside the US. Other cases end-up spending months outside the US before returning with Immigrant Visa.

 

Just to confirm: she only entered illegally once, correct?

[Jim Family 4]

2 minutes ago, HRQX said:

Before she leaves, she should file Form I-601A. https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers "The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview." That limits the time outside US. Some lucky cases just spend 2 to 3 weeks outside the US. Other cases end-up spending months outside the US before returning with Immigrant Visa.

 

Just to confirm: she only entered illegally once, correct?

Yes she only entered illegally once as a 12 year old girl.