What is the correct method for a U.S. citizen to apply to, or marry a foeign born national who is in current deportation status?
My fiancee is an indigenous Mayan Indian from Guatamala, we have been together since 12/05, he has been in the United States since 12/91, has an U.S. citizen daughter (11 1/2 yrs.), and a home and business. He was taken by ICE in 12/07, we paid his bond, and now are trying to figure out the complicated procedure for marrying each other....?!! How do we go about starting this, and what obstacles can we expect to encounter that could hinder/prevent us from accomplishing our marriage, and ultimately, permanent residency for my husband?
If your fiance is currently in removal proceedings, you need to hire an experienced immigration/deportation attorney. The process is very tricky. First, the marriage will come under a higher level of scrutiny since it will be perceived to be done for an immigration benefit. You must file the appropriate paperwork with CIS (and in the appropriate places).
Second, you will eventually be interviewed by CIS in regards to the marriage. If the marriage is approved as bona fide, you will be eligible for adjustment of status.
Third, you need to ensure you (and your attorney) appears at all hearings. If you change your address, you must notify the immigration court and CIS within five days. At the hearing where the Immigration Judge requests pleadings, you should indicate you're situation and tell them you are applying for adjustment of status.
You can see the maize of forms, interviews and hearings that are required. This is why its important to hire an experienced immigration attorney. Feel free to contact me through my website if you have further questions.
There really is no simple solution to any of your questions since the law could change at any moment in this highly volatile election year. Here's some ideas for you to ponder. But I warn you, without more complete information, it's really impossible for anyone at this stage to give you a really good road map about what course you should take:
He should always apply for a waiver of removal (Stay of Deportation). He's been in the United States long enough, so that should add a little sobriety into the process. And, are their asylum issues in this case? If so, you'll need to make that application as well.
And remember, the 11 year old can't petition for his father until the child turns 21...
Next, generally an 11th hour marriage doesn't terminate the removal process. However, there are some Federal Regulations that would seem to indicate the the Service can still adjust status before he is removed. You'll need counsel to look up those specifics about this issue....
Look, if it's a pretty 'open and shut' case, you may just want to offer voluntary departure to the Service and avoid certain 'bars' on re-entry into the United States. Have him return and then start the process over by trying to bring him into the United States (K-1) and THEN marry him.
Just depends upon the facts of the case...
Hire really good immigration counsel and let them know all of the facts. You'll be glad you did!
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