Skip to main content

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?

+ Read More

Attorney answers 5

Posted

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?

Asker

Posted

thank you for your response..i am 21 years old ,I came to the U.S when i was 10 , i started school here. it was not my choice to stay but my parents. My b1/b2 visa expired on 2007. My criminal record is clean. I know that deferred action is not permanent but i have a child with my husband that i need to provide for. We did marry in good faith, it just did not work out for the best....I hope you can provide me with more knowledge on this matter with the added information

Mark Robert Barr

Mark Robert Barr

Posted

I would recommend pursuing DACA at this point. That might mean you need to enroll in a GED program, if you never finished school in the past. Once you have DACA, you'll have a little more security. You may meet someone else, and be able to pursue status on the basis of the new relationship. Or you might qualify for immigration reform, if and when it finally comes. Even if it might be technically possible, I would not encourage you to seek status on the basis of a currently non-viable marriage. That path seems fraught with difficulty. Either work things out with your current spouse, or wait for other options to arise.

Asker

Posted

thank you so much for your reply once again. I actually graduated high school, so i wont be needing a ged. Now i have a question in regards of DACA. Is there any possibility that this policy could maybe be voided in the future?

Mark Robert Barr

Mark Robert Barr

Posted

Yes. It is an executive decision, not a law. So it can changed simply by the executive (in this case, Obama), changing his mind. Now, given that it was Obama who first announced this program, and he was reelected, I think it is safe to reasonably expect that the program will continue at least through the end of his term in office. If there is a change in admininstrations, and the new President is more of a restrictionist, then there is a risk that the program could be discontinued. That was the concern with Mr. Romney winning the election, since he had indicated his intention of ending the program (I believe he said he wouldn't take away DACA grants to those who had received them already, but that he wouldn't allow any new grants in his administration). Of course, the hope and expectation is that DACA will soon become moot, if there is a broad-based immigration reform that would give folks like yourself something more permanent than the stop-gap solution of DACA.

Asker

Posted

You were very helpful thank you. I now have a clear understanding about what should be done.

David B Pittman

David B Pittman

Posted

Great answer

Posted

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.

Posted

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.

Posted

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.

Posted

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.

Immigration topics

Recommended articles about Immigration

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer