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  1. #1
    Join Date
    Jul 2008
    Posts
    2

    Default Married an Undocumented Immigrant

    Hi there,

    I'm new to Expert Law and have been reading through the posts and I'm more confused than ever....

    Here's my situation:

    I'm a natural born U.S. citizen and my husband (of one year) entered here illegally. I have talked to about 5 different lawyers, and, they either won't do a case like his because they say the guy at the consulate in Mexico is making it very difficult (to get a visa, or whatever they do down there). The lawyer I would really like to work with wants to charge us close to $20K to do our case, which we can't afford.

    I'm thinking of taking the case on myself as I've known people who have filed their own paperwork.

    I am definitely going to file the I-130 on my own. Once I do that, what would be the next step?

    I hope i'm making sense... If not let me know.

    Thank you!
    Heather

  2. #2
    Join Date
    Jul 2008
    Posts
    24

    Default Re: Married an Undocumented

    To engage in the process of filing something, - anything - to obtain an "immigration benefit" (thats the term of art) is the closest thing you will come to inter-dimensional travel. Any normal familiarity you have with reason, rules, equity and human rights will become unfamiliar. Most noteably, the concept of TIME as you know it becomes unknoweable and unreliable.

    Ah, sorry,...I was slipping into a rant.

    1. Assuming of course that you don't have a "green card" marriage, getting your I-130 approved is the easier of the tasks that await you. Aside from completing the form, you need to complete the supplementary forms, and assemble the mandatory documents to be attached. You will also have to provide evidence of the bona fides of your marriage (how you met, how long you dated, letters, cards, emails exchanged, photos of the two of you at disparate events and ocassions etc.) Another assumption is that your husband did not once before marry a US citizen, who then filed an I-130 petition, and such petition was denied because it was determined that such marriage was soley for immigration purposes. If so, the law prohibits the approval of a visa for a subsequent (and legit) marriage.

    2. Now assuming the I-130 is approved, the hard part starts. Now this can get confusing (it confuses most, as it once did for me,) but approval of an I-130 petition for an immigrant visa does not mean the person you sponsored has been approved for residence. You haven't gotten a green card, you don't get a work permit or qualify for a SS number, and you are not immune from arrest and Removal (deportation.) It means you can now apply for adjustment of status (AOS) to that of a Legal Permanent Resident (LPR.)

    To adjust status to that of an LPR, a person must prove s/he is "ADMISSIBLE" to the U.S. How?
    By not having any one of a multitude of past acts or conditions that would make one "INADMISSIBLE."

    In your husband's case, he is inadmissible because he entered the U.S. without a visa - he entered illegally. There is a whole laundry list of things that renders one inadmisslble; here are just a few:

    - a criminal conviction;
    - having a communicable disease;
    - having once been Removed/Deported/Excluded;
    - having worked illegally in the U.S.;
    - having violated the conditions of a prior visa;
    - evidence of habitual drug or alcohol use;
    - insufficient income and/or financial resources of a sponsor and
    (in some cases, co-sponsor) that creates the presumption that the
    alien will become a public charge;
    - making a false claim to U.S. citizenship;
    - having once engaged in some act of marriage fraud...

    The list goes on. Some of the above are ostensibly curable through a Waiver of Inadmissibility. For example, a criminal conviction, or having a communicable disease can be waived IF you can demonstrate extreme hardship to a qualifying relative (spouse or parent) if the I-485 is denied and the alien is Removed. Other acts cannot be waived (false claim to U.S. citizenship; marriage fraud. This makes these acts a permanent bar to AOS.)

    So you see, a complete review of your husband's background is necessary before knowing how to proceed. BUT, assuming, again, that his only ground of inadmissibility is that he entered illegally - and that he is not grandfathered under 245(i) - he qualifies to apply for a waiver.

    BUT, unlike other issues addressed through a Waiver of Inadmissibility, he can only apply for the waiver outside of the U.S.

    Now, what can be so bad about that? 1) it takes TIME (remember what I said above); 2) proving "extreme hardship" can be onerous. What may seem as extreme to you and I can be dismissed as 'the common and usual consequence of family separation ("you are traveling in a different dimension..."); and 3) after 04/97, if someone has lived in the U.S. illegally for more than one year, and travels outside of the U.S., such person is barred from AOS for ten years. VOILA! a new ground of inadmissibility attaches for traveling outside the U.S. to address the original ground of inadmissibility!

    Now to soften this, this ground is also waivable. And, if your husband is grandfathered under 245(i), the 10 year bar on AOS does not apply (I know, what-the-freak is 245(i) Briefly, if your husband was the beneficiary or derivative beneficicary of a family or employment based petition/application filed prior to 04/30/01, he can adjust his status here upon payment of a fine. BTW: our experience with the U.S. consulate in Mexico on I-601 waivers isn't as negative as the opinions that were offered to you.

    I hope this answers some of your questions. But if not, I think it underlines how fraught with mishaps this whole process can be, and that you should rethink proceeding without an immigration practitioner.

    Feel free to follow up with any questions, and have a great Fourth of July!

  3. #3
    Join Date
    Jul 2008
    Posts
    2

    Default Re: Married an Undocumented

    Wow... Stockman, now that my head is spinning I will ask some follow-up questions....

    He has worked here in the U.S. with a made up identity... Is that another nail in the coffin??? By doing so, has he claimed to be a U.S. citizen?

    When I send out the I-130 should I send out pictures with it?

    If I file the I-130 and it gets approved, would it be OK to have a lawyer do the rest of it for us? Would it save a decent amount of money?

    Thanks a million..

    Heather

  4. #4
    Join Date
    Jul 2008
    Posts
    24

    Default Re: Married an Undocumented Immigrant

    Hi Heather, sorry for the delay in responding.

    1. "He has worked here in the U.S. with a made up identity... Is that another nail in the coffin??? By doing so, has he claimed to be a U.S. citizen?"

    Take heart; not necessarily. An alien may have worked, and be working illegally, without ever having claimed US citizenship. Absent a false claim to citizenship, unauthorized employment is not a bar to AOS IF (as in your situation) the alien is an immediate relative.

    2. "When I send out the I-130 should I send out pictures with it?"

    Passport style photos of both yourself, and your husband.

    3. "If I file the I-130 and it gets approved, would it be OK to have a lawyer do the rest of it for us? Would it save a decent amount of money?"

    I note that in your initial post, you said that you know of others that have filed on their own without a problem.
    Me too.
    BUT, we also have too, too many clients that filed on their own, things went awry, and at best, wind up paying more to fix the damage. In other cases, the cost-cutters who filed on their own, inadvertently initiated the process that deported their beloved.
    Filing pro se versus using an immigration practitioner, is a matter of risk assessment. If you live in a state (if there are any left) where auto insurance is optional, a person is left to determine whether the cost of insurance is worth the risks involved in driving. If nothing ever occurs that causes you to make a claim for coverage, paying insurance premiums seems wasteful. Otherwise, if something occurs that triggers coverage, paying the premiums are a bargain, if not a Godsend.
    I strongly, strongly urge you to use someone knowledgeable in immigration practice, who can ask the right questions, and analyze your circumstances, and advise whether even filing an I-130 is advisable.
    I remember a line from a commercial on preventive maintenance for an automobile: 'you can pay me now...or (ominously) you can pay me later...'

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