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Would it be better for me to seek naturalization through the Obama Deferred Action or Marriage ?

Los Angeles, CA |

I overstayed a tourist visa which is now expired, I have been married for almost 2 years to a U.S. born citizen. We are separated but not divorced, He is willing to help but not sure if it would be appropriate?

Attorney Answers 5


  1. Best answer

    I would not seek adjustment based on that non-viable marriage. Theoretically, assuming your intent at the time of the marriage was genuine, then you could seek adjustment of status based on a non-viable, but not formally dissolved, marriage. You see that sometimes in situations where a couple starts the paperwork, but by the time the ageny is ready to make a decision, the relationship has soured, and the couple plans to divorce as soon as the immigration process is over. There is a fairly old body of case law establishing that those types of applications can still be granted--that their is no requirement that a marriage be viable at the time of either the I-130 or I-485 adjudication, as long as the relationship was bona fide at its inception.

    In your case, however, it wouldn't be a case of the marriage deteriorating while the petition and application were pending. Instead, you would be starting the immigratio process after the marriage had already broken down. Technically, you should still be able to do this, but as a practical matter I can guarantee that the Service will take every opportunity to find a way to deny the case. I would not risk it.

    Regarding deferred action for childhood arrivals, my colleague is right--it is not status of any sort, and does not independently lead to status. It is a temporary safe harbor from deportation--an act of administrative grace for a certainl well-defined class of individuals.

    It is also not clear from your recitation of facts whether you would qualify. How old are you? When did you come to the U.S.? When were you supposed to leave? Have you, or will you, attend school in the U.S.? What is your criminal history?


  2. There is no path to lawful permanent residence or United States citizenship through President Obama's Deferred Action plan. DACA merely provides a deferral of removal for two years and employment authorization, if eligible. You consider retaining an attorney if you wish to seek adjustment of status.


  3. Differed Action does not give you legal status but keeps the government at bay for 2 years. You may apply for a green card through your spouse if you reconcile and honestly intend to live together as husband and wife.


  4. I agree with Mr. Barr. Please click here to see if you are eligible for Deferred Action. http://www.higbeeassociates.com/practices/immigration/us-immigration/deferred-action/

    If you would like a list with necessary documents to apply for DACA feel free to send me an email and I will email the list to you.


  5. Deferred action does not confer lawful immigration status or a pathway to lawful permanent residency.

    Any and all responses to this and any other questions are intended for basic informational purposes only and are not legal advice.

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