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Illegal immigrant marrying US citizen. How can we apply for residency for illegal immigrant?I am an undocumented immigrant was brought to the US when i was about 6yrs old, have lived here ever since, i am going to marry a US citizen. We are trying to figure out what we need to do to make me a resident. Some have told us it would be better to get married in the country i was born in and then apply for residency others say we should get married here in the US and apply for residency???? Need advice please!! Thanks in advance! Attorney answers (6)
Reputation Level 10
Answered almost 2 years ago.
Immigration Attorney in Phoenix, AZ.
Two questions: Did you enter legally, say with a border crossing card? Has anyone ever previously filed for you, and if so who, and when?
You can get married here, and your spouse can file the underlying I-130 Petition for Alien Relative. The problem is if you did not make a legal entry and nobody filed for you before April 30, 2001, you are subject to a 10-year bar because you have more than one year of unlawful presence (by the way, I am assuming you are over 18 in answering this). This means that after the I-130 is approved, you would have to go to your home country and consular process with an I-601 waiver unlawful presence. You must be able to demonstrate extreme hardship to have a waiver granted, and some consulates can be very good about granting them, while others are not so generous. 6 people marked this answer as good
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Your best strategy largely depends on whether you have proof/evidence that you last entered the U.S. legally.
If you last entered the U.S. with inspection but you are an overstay, the good news is that you should be able to file for and obtain a green card from within the U.S. based on marriage to a U.S. citizen. It is true that while most individuals who are here as overstays and/or have worked without permission are ineligible to obtain permanent resident status from within the U.S., this is not the case if you are applying for permanent resident status based on marriage to a U.S. citizen. The big issue in your case is proving that you last entered the U.S. legally. If you had a passport stamped or was documented in anyway, that makes the process a little easier. Addressing the last lawful entry issue, he may still pursue permanent resident status from within the U.S. based on marriage to a U.S. citizen. This is generally known as the adjustment of status process and requires filing the I-130, I-485, I-765 (work permission), I-131, I-864 affidavit of support, I-693 medical etc. You can find info on the green card process based on marriage to a U.S, citizen at: http://srwlawyers.com/ImmigrationOptions/GreenC... If you did not enter the U.S. legally on your last entry, your case should be reviewed to see if 245(i) applies. You may also have the option of departing the U.S. and processing through a U.S. Conuslate, but you will likely trigger an unlawful presence bar and require a hardship waiver in order to be approved for an immigrant visa. Leaving the U.S. as an option now should be thoroughly reviewed and discussed before you make a decision. Regards, Andrew M. Wilson, Esq. Serotte Reich Wilson, LLP www.srwlawyers.com awilson@srwlawyers.com 2 people marked this answer as good
Reputation Level 8
Answered almost 2 years ago.
Immigration Attorney in San Francisco, CA.
Under current US Immigration Law, you are left with few options if you are indeed undocumented and came without papers (EWI). While ordinarily marrying a US Citizen would put you ahead in line for a green card, you will likely be unable to apply for a green card administratively without leaving the US and processing at a consulate abroad. However, voluntarily departing the US even to consular process will pose huge problems for you as under 212(a)(9)(B)(ii) of the Immigration Act, you will be barred from returning to the US for 10 years absent a waiver for any unlawful entry and overstay. Depending upon your home consulate, you may have a good chance of being granted a waiver and being able to return to the US with your green card without having to wait outside the US for 10 years. However, processing times and results vary thus making it especially critical that you consult competent immigration counsel before attempting to depart the US.
Do not try this on your own. Subsequent unlawful and undocumented re-entries after your departure will only further complicate your situation should the waiver be improperly prepared and denied, thus subjecting you to even more immigration hurdles. 5 people marked this answer as good
Reputation Level 3
Answered almost 2 years ago.
Immigration Attorney in Chicago, IL.
§245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called "adjustment of status". Generally, persons who entered the U.S. without being inspected and admitted or paroled, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for "immediate relatives" of U.S. citizens and for certain EB applicants.)
§245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased §245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were "grandfathered" into the benefits of §245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons (You may be one of them!) have been in a state of legal limbo since 1998. A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of §245(i). Under the new law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000). I hope that helps. Sincerely, Mike Baker 6 people marked this answer as good
Reputation Level 18
Answered almost 2 years ago.
Immigration Attorney in Newark, CA.
I will agree with the previous answer. You will need to benefit from INA 245(i) to be able to apply. If you leave the 10 year bar will probably kick in unless you are eligible for some sort of 601 waiver. Unfortunately such waivers are becoming harder and harder to obtain. You might want to talk to a good immigration lawyer before you proceed on leaving.
Good Luck Shah Peerally Founder and Managing Attorney of Shah Peerally Law Group PC Law Firm Deals in Immigration law, Bankruptcy & Debt Relief Note: The above 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 a retainer is signed by the attorney and the client. 
Reputation Level 8
Answered almost 2 years ago.
Immigration Attorney in Pleasanton, CA.
I agree with the previous responses with respect to the law. As a practical matter, I'd add that it would be beneficial to speak to an immigration attorney in person. They'd be able to rattle off a number of questions that help identify what your best options are.
For example: how old are you; has anyone filed a visa for you previously; where were your parents born; have you been a victim of a violent crime (and or domestic violence); what would life be like if you were deported (removed) - a hardship evaluation; etc. And certainly, if you apply for an I-601 waiver, don't do it alone. I know it can be expensive, but your staying in the U.S. is likely an investment, and while an ethical attorney cannot guarantee success, your chances are much better with legal guidance. Best wishes, and good luck. Sarah Berry SKBERRY Immigration Dublin, California 2 people marked this answer as good
Other answers (2)
STARGERMAN
Answered by a user, almost 2 years ago.
This is a letter to request the extension of the 245i
Please make copies of the following letter. Sign it and mail it to congress, senators, house of representatives and President Obama. Please pass it on. Thanks To the Congressman, Senators, and Representatives of the United States of America. We the people of the United States are requesting that a law be extended to help benefit families of United States citizens. Law INA 245(i) allows some aliens, who are eligible for permanent residence based on a family relationship or job offer in the United States, to become lawful permanent residents (with green cards) without leaving the United States. However, INA 245(i) states that if an I-130, I-140, I-360 or labor certification was filed with USCIS on behalf of the alien before April 30, 2001, the alien may be able to adjust status and receive a green card without leaving the United States. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he and/or she was in the United States on December 21, 2000. Tens of thousands of families that are trying to do the right thing are being torn apart and adversely affected by the April 30, 2001 deadline that applies to this law. Not to also mention the thousands of jobs and buisnesses that have been affected and or interupted by the passing of this law. Families that applied for adjustment of status after April 30. 2001 are being forced to leave the United States and return to their foreign country to adjust their status. However, these people are becoming inadmisible into the United States for a period of 3 to 10 years as punishment for being in the United States illegally. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) enacted in September 1996, provided that an alien who accumulates between 6 months and 1 year of unlawful presence in the United States after April 1, 1997, becomes inadmissible for 3 years if he and/or she subsequently leaves the United States. Even if an alien who had become subject to a bar were to obtain a visa at a consulate, he and/or she would not be admitted into the United States upon arrival. Similarly, an alien who accumulates 1 year or longer of unlawful presence becomes inadmissible for 10 years. Husbands, Wives, and Families of United States Citizens are being affected by the separation from other family members for a period of between 3 to 10 years since the passing of this law. This current law needs to change and be extended to a later date to give oppurtunity to those that who were elligible prior to the introduction of the INA 245(i) law. It doesn't make sense that if someone is married to a United States Citizen, that person needs to stay out of the United States for a period of up to 10 years just to adjust their status. Some people are not trying or are completely giving up to adjust status because the chances of returning to the United States to reunite with their families seems, at this point, almost impossible since the introduction of INA 245(i). With your help, the extension of this law would help these people remain in concent with the law and stay as socially concious workers. I, as one of the people of the United States, respectfully request that Law 245(i) get extended so that families are no longer separated and all the illegal aliens that have visas immediately available are able to adjust their status without having to leave the United States. ____________________________________ Date ____________________________________ Name _____________________________________ Signature _____________________________________ Address 3 people marked this answer as good
bj_osterhout
Answered by a user, almost 2 years ago.
In Layman's Terms:
- Did you enter at a border un-inspected (in a trunk of a car, with coyote, etc.) or did you enter with a student or tourist visa and at one point it expired and you stayed..? - If you never had a visa and entered illegally what you do is first file the I-130 (if married) or I-129f (if engaged). Once it is approved (right now it appears to be taking only 2-4 months..!) your case is sent to NVC for processing. Then you will get more forms - biographical forms, financial sponsorship forms, etc. Here the U.S. citizen spouse will need to document that they have enough income to support the immigrant. I believe it's around 18k annually (before taxes) for a family of 2. A 40-hr a week $10 an hour job equals about 20k annually. So most people are able to meet this requirement. If not I have seen many take a second job or you can use assets or you can use a co-sponsor (friend, family member, etc.) to meet this requirement. It is something that you will have to find a way around and may need to beg a family member for the favor but it is worth it. After this stage, the immigrant will be sent an appointment for a visa in their home country. If they are from Mexico, the appointment will be in Ciudad Juarez. You will then be denied the visa but given the opportunity to set another appointment to submit the waiver if you are eligible for the waiver (no Tuberculous, no gang ties, no major criminal background, no multiple entries, no claims of citizenship at the border, etc.) Mexico is the only country that has a "pilot program" through which you can get your waiver approved immediately if they deem it sufficient enough. Or it can be "backlogged" for review which takes around a year or more. If you are going through another country it will be sent to this "backlog" even if it is a great packet. Processing times vary by country but generally range from around 6-18 months. This waiver is called the I-601 waiver and while it can be complicated, timely, and a little expensive if you know what you're doing it's not even close to being impossible. I just went through this process with my husband last year.. I was 21 and did the whole thing by myself (in 9 months) with no lawyer (but then again I am very good at writing and very organized, meticulous, etc.) It was a 11 page "letter" (more like a paper you write for school you know the type with works cited) and then about 100 pages of evidence, photos, letters, etc. So it's a whole packet. So - if going through Mexico I would estimate your time before getting legal at around 8-10 months. With maybe a few weeks only out of the U.S. UNLESS you are backlogged in which case around 1 year outside of the U.S. And about 2 years total from the day you file the petition until the day you come home and get green card. If through another country I would estimate possibly closer to 2 years with about half of that outside the U.S. waiting. I know it sounds scarey but don't let it stop you from trying it. The only advice I have is to make SURE your marriage is strong. I am a part of the forum www.immigrate2us.net (PLEASE sign up it will help you soo much emotionally) and we have seen everything from someone's husband running off and marrying someone else without so much as calling their wife in the U.S. to someone's husband calling his wife and telling her that he was with a man and not coming back home. I have seen dozens of marriages strained or ruined by the process. This usually happens when backlogged. But I have also seen dozens of marriages come out stronger. My husband was not backlogged but our marriage was very strong to begin with and came out even stronger. Just be sure you are prepared and don't forget the possibility living together in your home country for 1 year if backlogged. 7 people marked this answer as good
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