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I am a US citizen and married an illegal immigrant.

Pompano Beach, FL |

We have been living together as a couple since March 2010 and got married in May 2012. He has been here for about 7 years and I want to know if I could ever petition for him. Will he ever be able to be here legally? What can I do?

Attorney Answers 7


  1. Best answer

    Did spouse enter with a visa or without?

    Generally, a person who entered the country illegally and is here without proper immigration status must return to his/her home country to file an immigrant visa petition to be able to return to the United States. The problem is, once he/she leaves the country, he/she faces an automatic unlawful presence bar of inadmissibility of 3 or 10 years before they can return (3 years if he/she had been in the U.S. less than 6 months and left voluntarily, 10 years if in the U.S. more than a year).
    One exception to this is if the foreign national was the beneficiary of a labor certification application, or immigrant visa petition for an alien relative (I-130) or immigrant petition for alien worker (I-140). In this case, he/she may file for an adjustment of status under INA § 245(i) to remain in the country for the processing of the visa petition. This law, which is no longer in effect (but petitioners who fit within the criteria are still grandfathered into the process), allowed for the payment of a $1,000 fine to waive the unlawful presence bar. The requirements are that the foreign national is the beneficiary of the qualifying immigrant or labor certification petition filed on or before April 30, 2001; that if the foreign national was the principal beneficiary, that he/she was physically present in the U.S. on December 21, 2000; that the foreign national has a visa immediately available to him/her and he/she is admissible to the U.S; and the foreign national must pay an additional $1000 fee.
    In the case that a 3 or 10 year bar is applicable, the immigrant may file an I-601 extreme hardship waiver to eliminate the unlawful presence bar to returning to the U.S., but the time it takes for DHS to process these petitions can take weeks, months, or even years, and the person must remain in their home country until the waiver is approved. In deciding what qualifies as extreme hardship, the DHS official will consider: 1) the presence of LPR or USC family ties to the U.S.; 2) the qualifying relative's family ties outside the U.S.; 3) the country conditions in the country of relocation and the qualifying relative's ties to that country; 4) the financial impact of departure from the U.S.; and, 5) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation. They may also consider factors such as the impact of separation; the economic and other conditions in the country to which she will accompany her spouse or parent; the financial, emotional, cultural, and political conditions in that country and her ability to raise children and other quality of life factors, like health and employability.

    A new development, that has not gone into effect yet, is the Obama Administration’s announcement of changes to this process that will allow certain immediate family members to remain in the U.S. while their extreme hardship waivers are being processed, and only have to return to their home country for an interview and visa processing. In order to be eligible for this waiver, though, the foreign national must be an immediate relative of a U.S. Citizen (not a lawful permanent resident) and there must be extreme hardship to qualifying relatives who are U.S. Citizens if a person has to leave the country for the processing of their petition. The considerations for extreme hardship under this new announcement are the same as the I-601 extreme hardship waiver considerations.

    Neil I Fleischer (513) 977-4209 www.immigrate2usa.com Note: Neil Fleischer is an attorney licensed in the State of Ohio The below answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney/client relationship is created unless an Agreement is signed by the attorney and the client. Best regards, Neil Neil I Fleischer The Fleischer Law Firm, LLC 917 Main Street Cincinnati, Ohio 45202-1314 Direct telephone: 513 977 4209 nfleischer@immigrate2usa.com Enjoy our Blog at http://immigrate2usa.blogspot.com/


  2. Neil is spot on. The critical inquiry is how he entered the U.S. Even if he entered without a visa but was inspected and entered the U.S. he could file to adjust status. This is a fact intensive inquiry. Hire counsel.


  3. My colleagues are absolutely correct. The options will largely depend upon the actions of the Congress after the election, since it depends on whether or not a new " Pathway to Citizenship" for illegal aliens is crafted, which can include a forgiveness period for illegal immigrants who turn themselves in. You may have a political solution coming down the road-- in addition to the remedies proposed by my colleagues-- but in any event, you need to immediately seek legal representation. There are many fine immigration lawyers and the Pompano area. Good luck.

    The answers to questions provided in response to the request for assistance are general in nature, and reflect information which is primarily based upon general legal principals, and may additionally reflect Ohio principles of legal practice, as this is the primary location of this Attorney's practice. As with any legal advice, the advise is general in character, and should not be put into practice without specifically consulting your local counsel, who will possess far more insight into the applicable standards and laws of your specific State, your case's specific issues and the local Rules of Court and practices of the specific jurisdiction your legal action is governed by. You are specifically instructed : Do not proceed without first discussing this matter with your own local Attorney. This Office does not provide free legal advice by telephone. A 15 Minute Consultation can be obtained at no cost for certain types of legal cases, but to obtain same, an Office appointment is required. Provision of the answers to general questions does not constitute an act of representation, and the Attorney shall not be deemed to accept employment based upon the responses contained herein. The reader is advised that they utilize the general suggestions contained in the responses at their own risk, and under no circumstances should they disregard the advise of their present local legal counsel based upon any suggestions or opinions contained herein. Also, the bast method to discuss a case with an attorney is to do so directly, by scheduling a formal consultation in their office, bringing with you at the time of the meeting all of your relevant paperwork, including any contratcs, any Orders from Court, decrees, complaints, pleadings, etc., and any other relevant information for the attorney to review. General information via the internet is no substitute for an actual meeting with an attorney. The advice provided on line in response to the limited information is provided without charge. It is also provided without the benefit of face to face discussions, so before you act--consult an attorney in person.


  4. I agree with my colleagues you need to schedule a meeting with a qualified Immigration Attorney as more information is needed in order to provide a fact specific answer.

    Morales Law Firm P.A. 2100 Coral Way Ste 703 Miami, FL 33145 (305) 851-7856 This response is not offered as legal advice, but is only a general informational response for public interest. No one reading this is authorized to claim that an attorney client relationship exists with this writer or the writer's law firm.


  5. Absolutely, as long as he has entered the country in a legal manner. I understand that discussing someone's legal status may be something you want to discuss directly with an Immigration professional on a face-to-face consultation, but urge you to make sure you consider someone that has a broad understanding on the subject. Also, make sure you contact an attorney as soon as possible as there could be another alternative by filling under the "Deferred Action For Childhood Arrivals".

    The Law Office of Melissa Dacunha
    750 East Sample Road
    Pompano Beach,Fl
    954-785-9280
    mydacunhalaw.com


  6. Yes, you should be able to petition for him, but you should be careful. Before filing a petition I would need to know how he entered the country and if he has proof of a legal entry. If not, he may need to leave the country in order to process his legal permanent residence. Call me at 954-782-9066 to discuss this matter.


  7. You did not provide enough detail to give you a specific answer for your situation. However, as a general rule, A US citizen can petition for their illegal spouse even the the spouse is here illegal. BUT how the spouse entered the USA will determine if the can get the green card(adjustment of status) eg. entry on tourist visa adjustment -yes. entry without paper-no. A thorough consult would be needed however in your case.

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