The Money Mustache Community
Learning, Sharing, and Teaching => Ask a Mustachian => Topic started by: myownpath on September 17, 2016, 08:03:08 AM
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Due to the nature of this post (and me wanting to remain "anonymous" -- as in, keep this topic separate from my forum account under which I post much more frequently, I created a separate account for this question. Mods, I hope you are ok with this. If there is a more appropriate way of handling this that I'm not aware of, I apologize.)
For a while I've been in a (same-sex) relationship with someone. This person did not come to this country through the "official channels", and is undocumented. He has been living here (and working here, to any extent possible) for over a decade. The relationship is becoming very serious, and I think we are probably going to get married. Fortunately, we live in what is considered to be a "sanctuary city", where the local officials and local law-enforcement pretty much turn a blind eye to people's immigration status, as long as they aren't committing any crimes (other than the crime of simply being here...)
Getting married does NOT automatically grant my partner citizenship, or any kind of immigration status. Since he did not come here with a visa, the federal law is such that, in order for him to become a citizen (for the purpose of being a family member of another US citizen), he would need to leave the country for 10 years. This will not happen. He is afraid of going back and being stuck of the central american country from which he came.
Have any other Mustachians been in a similar situation or have any suggestions? I know we are obviously going to be racking up some legal bills with an immigration attorney in the future, but if anyone can give me some realistic expectations, it would be helpful. Specifically, any ballpark figures of what the costs might be and the probabilities of success.
I have done a lot of searching and reading online, but it is hard to interpret a lot of what I've read.
My research indicates that there are several avenues that could be pursued:
- Hard-ship for me. Basically an attorney would argue that it would be a hard-ship for me to have to relocate to my partner's country, so for us to remain together, my partner should be granted citizenship. This is essentially an "exception" to the leave-usa-for-10-years-rule. These aren't too many of these granted.
- Asylum. An attorney would try to have asylum granted for my partner on the grounds that he is not safe in his home-country because of his sexuality. Typically we would need to prove that there was a direct and imminent threat to his safety, instead of just the overall gay-unfriendliness of the area. This would be difficult, I think.
- Medical. I think there are exceptions granted to people with some medical issues. My partner hurt his back at one of his previous jobs, and (I think) will probably need surgery to deal with the bad discs.
- Other factors to consider: His employment situation in this country is quite miserable, due to his immigration status. However, back in his home-country, he graduated near the top of his class, got a university degree, and had a professional job there before he came to this country. But now, he is forced to settle for near-minimum-wage unskilled jobs.
- My large Stache and my large Salary. I have a pretty decent 'stache of assets, highly-skilled high paying career,, and I wonder if that helps make the case for letting my future-spouse stay in this country. (e.g. as a "valuable high-tax-paying person", would it help that they would want to keep me here and happy? Opposed to investigating other countries to possibly emigrate to...
I am also wondering things like, are there legal risks to myself?
I'm not sure how to handle taxes, as he does not have a SSN and is paid "off the books". If we got married, do we file jointly? I would definitely report his income, but if it doesn't have a W-2 attached to it, will the IRS go after his employer? (which probably would end up with him losing his job eventually...)
What about past years (when I'm pretty sure he has never filed taxes)? He is paid so low, that even if he were to have filed, he wouldn't have owed much of anything anyway. Whatever that amount is, I would gladly pay in back-taxes and penalties if it would mean he could become a citizen.
Medical insurance. As an undocumented immigrant, he cannot participate in the ACA exchange. I hope I could add him as a spouse to my employer's medical plan when we are married. I wonder if there are any additional issues that would arise from this since he doesn't have a SSN. I'm not sure if I even want to be asking these questions to my employer anyway, but I definitely want to get him covered with health insurance (and probably have some doctors look into his back problems.)
I think I've gone on long enough on this. I just wish there were easy answers, but unfortunately that doesn't seem to be the case. This community (MMM) is by far the most intelligent online community that I'm a part of, so I posted this here for advice, both financial and otherwise. Any helpful advice from you all is appreciated.
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I really think you need to talk to an attorney in your area on this. It's such a serious situation that a mis-step could force him to leave.
I've helped 3 people get asylum here from 3 different countries. (Two affirmative, one defensive.) One dealt with what I'll characterize as a civil war, with a family member who was involved politically. Another had US soldiers help with a medical situation for her child, when association with the US was not good. The third was an activist who was jailed and beaten. You may be able to find a pro bono lawyer to take on his case (particularly before you get married).
Obviously, if Trump is elected, your situation may change dramatically.
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I'm a legal immigrant who DIYed his immigration. Trust me when I say that you absolutely, most definitely need an attorney who specializes in this area of immigration law. By design, there are no clear pathways to legalization for aliens who have already violated the existing laws. There have been legislative attempts to rectify this in the last couple years but all efforts so far have stalled.
That being said, at first you will be petitioning for legal status, not citizenship.
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This doesn't help with maintaining your current situation, but I personally would start looking at emigrating to a third country, especially as it sounds like both of you have desirable professional skills and don't want to move to central America. I would want this as plan b if becoming a us citizen goes poorly.
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I wonder how US officials would know that he is been in the US for the past 10 years.
I remember driving to Mexico from the US once, and there was nobody there to check anyone at the border - we just drove through (a very different experience from crossing the border in the other direction!).
I am not claiming this is your best course of action, but I wonder what would happen if you did the following: He travels to Mexico in some way that he doesn't get checked when crossing the border, you fly down to meet him, you both spend a month there, get married in Mexico, and then apply for his green card, all as if he had never been in the US. A quick google shows that the marriage laws in Mexico may not allow this as you are a same-sex couple, which complicates things. But maybe you can amend the above plan to include a trip for you both from Mexico to somewhere else which allows same-sex marriage.
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I am acquainted with several successful immigration cases, but only peripherally. Posting mostly to wish you the best of luck because from what I can tell, you need both luck and skill in these cases.
From what I've seen, I strongly advocate professional advice and continued research.
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This is a tough one for sure. If they could leave the country undocumented then you could start a fiance visa process. (K1 Visa) Anyway I brought my wife here from the Philippines and went through the process. Unfortunately your situation is tough as you already know. The only thing I can offer you is the website that we used. www.visajourney.com It has great forums and great advice. If you search around on it you will likely see people in your same situation and may be able to get good advice from them. Good luck!
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Interesting.
My sister recently married a Mexican citizen who she met in Mexico. They married in the US while he was here legally. They will be applying for his green card while in Africa, at a US embassy.
I know nothing official, and would definitely 100% contact a lawyer before actually doing anything, but I agree that you two "meeting" in a 3rd country that allows same sex marriage might be the way to go. "Meet" there while you are on sabbatical or between jobs or whatever, marry, come back. Or whatever order the lawyer says to do things in.
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An initial consultation with a good immigration attorney probably won't cost you more than a couple hundred bucks and is really, really the way to go here.
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As a fellow immigrant for love, my advice is this: be patient. This is going to take a long, long, long time.
2013: moved to Australia on a temporary visiting visa.
2014: applied for a permanent visa.
2015: finally granted a temporary permanent visa (after 12+ months in limbo)
2016: applied for permanent residency.
Still waiting to hear back (~6 months now). And Australia is EASY compared to immigration in America.
Get yourself in the right mindset to settle in for the long haul. Do NOT make any plans whatsoever about the future that depend on getting the visa in a certain time; do NOT look forward to it being granted. Do whatever necessary to get the damn thing, but live your life like it doesn't exist in the meantime.
I made the mistake of thinking "as soon as I get my visa, then I can visit my home country" and then I got homesick, and then my visit got pushed back by A YEAR AND A HALF because of the visa. Then I was unhappy, which affected my ability to work/get more jobs, and my partner was distraught that I was unhappy.
Getting visas is only one aspect of building your lives together. Make sure you put equal effort into all the other things that cement you in marriage, whether you've got the piece of paper or not.
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You definitely need an immigration attorney to navigate this properly and safely. I don't know where you're located, but one of my law school friends is an attorney at Central American Legal Assistance (http://www.centralamericanlegal.info/) in NYC. She provides legal assistance to refugees from Central and South America. It seems that her asylum cases tend to take a long time. In any event, if you think that organization could be a help to you, please PM me and I can connect you directly with my friend.
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I have nothing useful to add, but just want to wish you the best of luck. International relationships can be so complicated! My SIL is canadian, and has an american/argentinian SO. Living in Canada or the US together was logistically challenging, so they both applied to a number of jobs internationally, and decided to move wherever one of them got a job first. So they live in Mexico.
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Another enthusiastic good luck! You sound resourceful and determined and you will find a way. Also another vote for choose another country you can both live in. I was born in South Africa but have lived and worked (legally!) in the UK, Australia, Singapore and now currently Malaysia. Good qualifications, decent experience and a bit of money behind you to make the move smooth all help. All of which it sounds as if you have. Obvs you will have to avoid countries with crappy unprogressive laws (looking at you, Singapore!) but you have a lot of options :)
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The person who was asking how the officials would know... They would know because he probably came here on a tourist visa. Assuming he came here with a tourist visa, if you don't leave when you are supposed to and it is over 1 year you are automatically banned for 10 years. I would definitely get a good lawyer. It will not be cheap considering even the simplest cases cost a lot of money. Good luck!
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@CaptainFire - We are both well aware of the consequences for us in this regard of a Trump presidency, so we definitely are keeping that on our radar as we plan our next moves. (That said, I would prefer that I don't spark any kind of political debate in this thread. I respect everyone's opinion on the matter, and everyone has their own reasons why they sway in one direction or another, politically.) I'm not too concerned about whether a lawyer is pro-bono or not, we are more concerned with what the outcome will be. Thank you for your input.
@Paul der Krake - Yes we are for sure going to retain a lawyer for this. I'm well aware that since he didn't come here through the appropriate channels, it will definitely be an up-hill battle, so we will be consulting with a lawyer to go over our options. Thanks for your thoughts, and congratulations on your own personal successful immigration :)
@Jacks flunky - I have looked online at some other countries' immigration policies. Most first-world countries make it difficult to immigrate there (even for a United States citizen) unless you have some kind of attachment to that country already, or are intending to move there for the purpose of opening up a business with a significant financial investment in the local economy. (Not quite sure I want to risk my 'stache on opening up a business in another country.) We will definitely keep it as a consideration if things do not turn out well in our attempts to get him some kind of legal status here.
@IrishMustacian - I have thought of this, but I haven't proposed it to my partner because for one, he is very afraid of leaving this country and not being able to come back, and secondly, since he has already been in the country for a while, if the Immigration Investigators were ever able to prove that he had already been in the United States, it would ruin this place. I also have a distaste for trying to "get around the rules" by doing things in this matter. Thank you for your suggestion though.
@Bicycle_B - Thank you so much for your well-wishes. We will definitely heed the advice of retaining a professional.
@bmiles62 - I'm glad things worked out well for your and your wife from the Philippines! Thank you for that link to visajourney, I will take a look at it when I have some more free time next weekend.
@MayDay - I wish your sister and her spouse the best of luck with obtaining the green card!
@neophyte - I would tend to agree that a consultation with an immigration attorney would probably be < $500. I'm just concerned with how much it will cost in total, since I've heard that these kind of things can (literally) take years! Perhaps most of this time is just waiting, and there will be infrequent large checks to write to the attorney. I hope I can get a better feel for the "all-in expenses" when I have a consultation.
@Sandia - Congratulations on your permanent visa success in Australia, and I'm sending you good thoughts in the hope that you are approved for permanent residency over there. Thank you for your encouragement about building a life together outside of the immigration issue.
@LeRainDrop - Thank you for your suggestion. We do not live near NYC, but I will definitely keep that organization in mind. I think we are going to try to obtain legal counsel that is local to our metropolitan area. If we don't find an attorney to our liking, I will keep your suggestion in mind.
@everinprogress - I'm very grateful for your well-wishes, and I'm glad that things are working out well for your sister in law and her spouse.
@NewbieFrugalUK - Thanks for your good-luck wishes :) They are very much appreciated. You are absolutely right about being careful about certain countries. I don't think we would ever even consider a country that has laws that are hostile toward marriage equality.
@SKL-HOU - Thank you for the suggestions and the well-wishes :)
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Please let us know what your consultations yield. You have a very interesting and challenging journey ahead.
Best of luck to you and your partner.
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Looking for a suitable "plan B" country does seem like a good idea. Canada and New Zealand come to mind as places with points/checklist-based immigration policies, English as official languages, and recognition of same-sex marriages. Depending on your education and career, you may find yourself only needing a job offer to exceed the required points threshold.
If it's an option you are willing to consider, do mention it to the immigration attorney during your initial consultation. How/when/where you got married and ended up in a third country could have an impact on a future application you make to sponsor your spouse for US residence from that third country.
Good luck to you both!
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10 years is a long time but not forever. You could finish getting your stache, then move to another country for ten years until you can start the immigration process.
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As an immigrant I’d say something very similar to the above Get a lawyer! Even just having a lawyers name on immigration documents makes the process smoother. Plus the advice etc etc.
Worse case appears to be a 10 year break abroad for you – better have that stash ready!!
Ugly scenario but not impossible. Good move on being proactive about resolving it.
And good luck.
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Update: Well, the result of the election is just about the worst possible outcome I can imagine. We are both deeply saddened, and are trying to decide if it would be a waste of money to try to hire an attorney at this point, or if we should investigate our options for leaving the country.
:(
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To be completely honest, I would wait before deciding to leave the country, but talk to a laywer immediately. He hasn't actively broken any laws and you are in a sanctuary city. Ride out the political storm and see what happens/when.
I am personally hopeful (though maybe I shouldn't be) that after 'building the wall', DT will pull a "Nixon goes to China" and offer amnesty after a year or two to the undocumented immigrants who are here but are helpful/profitable/educated. It might wind up being expensive but I wouldn't rule it out of the equation.
Sorry for your current situation, the US immigration policies should have been cleaned up decades ago.
Edit to clarify
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Unfortunately your SO chose to commit a crime and is here illegally, consider it a good ride while it lasted and wait and see what happens next year, it's possible not much changes but I think that's unlike given it was a pillar of Trump's campaign and as nice as it would be I don't see an end of the welfare state and open borders coming any time soon.
Get a lawyer and try to fast track to legal status if you want to stay, or move elsewhere. You could both go to Canada illegally, but they are even more strict. My understanding is most countries an American would typically want to live are fairly strict with regard to immigration laws, so if you want to go somewhere else legally start researching what it takes now and how your SO's illegal status here may affect immigration to other countries. It may complicate things.
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myownpath, I'm sorry for this news. My instinct would be to consult an attorney sooner rather than later in case something can be worked out. It remains to be seen exactly what policies Trump and the 2017 Congress would actually implement, but I think odds are that today's environment for solving your issue is better than what may lie ahead. I would think it's best to get in front of it now and find out if you're already screwed or if solutions can be fast-tracked.
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I'm married to an undocumented woman from Central America that was brought here illegally as a child. She has lived here basically her whole life, she doesn't even speak her native country's language, and she was unaware of her "illegal" status until after she was 18. She's as American as you or me, or anyone else. It's truly scary to think that she might be deported to a county that she hasn't lived in since she was a toddler, she can't even communicate there, and she has no known family to go to if she is deported.
She was able to apply for the deferred action program that was designed for people like her and implemented by Obama in 2012. This granted her a work permit and social security number and also enabled her to obtain a skilled job and pay taxes. I added her to my employer provided health care plan after we got married and I didn't have to prove that she was a citizen or anything, they just needed her social security number.
I'm sure the deferred action program will be rescinded by Trump, so she'll eventually lose her work permit. So far, she has never actually had to show any employer her work permit, but I imagine Trump will make the use of e-verify mandatory for all employers, so she may be unable to work without a work permit after Trump takes office. The social security administration granted her a social security number and card, but I'm not sure if she will lose that. If she does, she will then be unable to obtain and maintain a driver's license in the state we live in. So she won't be able to work or drive a car or fly on a plane.
Trump's planned actions will turn a productive, tax paying, health insured member of society into an outcast. If she were forced to return to her home country to wait out a 10 year ban, who knows what would happen to her. As I mentioned, she has no known family, she can't speak her native country's language and would essentially be homeless and on the streets in a dangerous third world country. The fact that she's married to a US citizen means nothing because she entered the country illegally when her 14 year old mother basically abandoned her as a toddler and an American family smuggled her into the country. The American family that took her in never did anything to correct her status and allowed her to become an adult before they even told her how she was brought here.
I just wanted to share my story to let the OP know that he is not alone. Trump is a monster and it looks like America will lose both of us if he implements his campaign promises.
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Did your partner crossed the border illegally or did he overstay a tourist visa?
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The fact that she's married to a US citizen means nothing because she entered the country illegally when her 14 year old mother basically abandoned her as a toddler and an American family smuggled her into the country. ...
Assuming you want to regularise your partner's status, you need to get some legal advice from a qualified lawyer, and you need to do so immediately. There are various potential ways to fix this problem, and although we can't know whether any of them will apply to your situation, there is a possibility that some might, so you really need to get legal advice immediately in case these options stop existing.
Subject to many conditions and exceptions, entry without inspection can potentially be corrected by obtaining advance parole, leaving the country pursuant to the grant of advance parole, returning as a parolee, and then adjusting status. See Matter of Arrabally, 25 I&N Dec 771 (https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3748%20(final).pdf) (BIA 2012). See also Homeland Security Memo Re Arrabally (https://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf) (Nov 20, 2014). The ability to obtain advance parole as part of the "DACA" program may disappear very soon (especially since it takes potentially months for the application for advance parole to be adjudicated), so I stress again, you want to obtain legal advice right now to determine whether there are solutions that apply in your situation. Stop whatever you are doing and obtain legal advice. Right now.
If you've already obtained legal advice and none of the possible solutions apply to your situation, then I am sorry for urging you to obtain legal advice, but from your post it does not sound like you are aware of these possible solutions. Keep in mind that the DHS memo that I cited was only published in November 2014, so if you obtained legal advice before then, you should obtain some new advice. And you may want to bring the memo (https://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf) to the lawyer as well and ask for advice on whether your partner can become a permanent resident by obtaining a grant of advance parole, leaving the country pursuant to the grant of advance parole, returning as a parolee as authorised by the memo, and then adjusting status to that of lawful permanent resident. Again, this technique may or may not apply in your specific situation, but you should at least obtain legal advice on whether it does help.
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The fact that she's married to a US citizen means nothing because she entered the country illegally when her 14 year old mother basically abandoned her as a toddler and an American family smuggled her into the country. ...
Assuming you want to regularise your partner's status, you need to get some legal advice from a qualified lawyer, and you need to do so immediately. There are various potential ways to fix this problem, and although we can't know whether any of them will apply to your situation, there is a possibility that some might, so you really need to get legal advice immediately in case these options stop existing.
Subject to many conditions and exceptions, entry without inspection can potentially be corrected by obtaining advance parole, leaving the country pursuant to the grant of advance parole, returning as a parolee, and then adjusting status. See Matter of Arrabally, 25 I&N Dec 771 (https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3748%20(final).pdf) (BIA 2012). See also Homeland Security Memo Re Arrabally (https://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf) (Nov 20, 2014). The ability to obtain advance parole as part of the "DACA" program may disappear very soon (especially since it takes potentially months for the application for advance parole to be adjudicated), so I stress again, you want to obtain legal advice right now to determine whether there are solutions that apply in your situation. Stop whatever you are doing and obtain legal advice. Right now.
If you've already obtained legal advice and none of the possible solutions apply to your situation, then I am sorry for urging you to obtain legal advice, but from your post it does not sound like you are aware of these possible solutions. Keep in mind that the DHS memo that I cited was only published in November 2014, so if you obtained legal advice before then, you should obtain some new advice. And you may want to bring the memo (https://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf) to the lawyer as well and ask for advice on whether your partner can become a permanent resident by obtaining a grant of advance parole, leaving the country pursuant to the grant of advance parole, returning as a parolee as authorised by the memo, and then adjusting status to that of lawful permanent resident. Again, this technique may or may not apply in your specific situation, but you should at least obtain legal advice on whether it does help.
I appreciate the advice. We looked into the advance parole option, but it's only approved for humanitarian reasons (sick relative), education, or for work purposes (your job needs to send you somewhere for training). The only option that I read about people having success with was the humanitarian option. DACA recipients would provide a doctors note from a sick or dying relative requesting their presence in their home country to care for said relative. My wife literally knows no family back in her home country to even explore that option. Also, advance parole does not guarantee re-entry to the United States. It's still at the immigration officers discretion, so you're kind of taking a risk. I haven't read about anybody being denied re-entry with advance parole but it's still a scary risk to have to take. We only learned of the advance parole option a few months ago, so it's probably too late for that.
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I strongly recommend obtaining legal advice. A lawyer may be able to help you think of arguments that you haven't considered on your own, or help you frame your circumstances in ways that you haven't considered, or give you practical suggestions as to how you can meet requirements that seemed impossible to meet.
Just from what you are saying, I am not getting the impression that you have exhausted every possible angle.
There are even last ditch options that may never have entered your mind, like parole-in-place or a private bill. Many of the possible solutions involve the exercise of discretionary power and a lawyer can help you present your circumstances in as sympathetic of a light as possible. To be sure, some of the possible solutions are rather remote in their chance of helping you, but a lawyer can still help you put together a case and possibly get some chance of relief, however small that chance is.
As I said above, I cannot say whether there is any solution to your problems. There may be no solution. I express no view on that. But you may want to obtain legal advice before reaching that conclusion.
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You are right, there may be some angle that I haven't thought of. I will definitely seek legal counsel with this. The whole situation sucks, and it's really sad that so many people can't see that undocumented immigrants are human beings. She's a great person that just wants to be a normal, productive member of society. She didn't come here to take anybody's job. She doesn't get free govt handouts or preferential treatment of any kind, it's quite the opposite in fact, despite what most people seem to think. Every single part of adult life has been difficult or impossible for her because of her status. She was rescued from an abusive and neglectful family in a third world country and she has been punished every day of her life for it.
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The fact that she's married to a US citizen means nothing because she entered the country illegally when her 14 year old mother basically abandoned her as a toddler and an American family smuggled her into the country. ...
Assuming you want to regularise your partner's status, you need to get some legal advice from a qualified lawyer, and you need to do so immediately. There are various potential ways to fix this problem, and although we can't know whether any of them will apply to your situation, there is a possibility that some might, so you really need to get legal advice immediately in case these options stop existing.
Subject to many conditions and exceptions, entry without inspection can potentially be corrected by obtaining advance parole, leaving the country pursuant to the grant of advance parole, returning as a parolee, and then adjusting status. See Matter of Arrabally, 25 I&N Dec 771 (https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3748%20(final).pdf) (BIA 2012). See also Homeland Security Memo Re Arrabally (https://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf) (Nov 20, 2014). The ability to obtain advance parole as part of the "DACA" program may disappear very soon (especially since it takes potentially months for the application for advance parole to be adjudicated), so I stress again, you want to obtain legal advice right now to determine whether there are solutions that apply in your situation. Stop whatever you are doing and obtain legal advice. Right now.
If you've already obtained legal advice and none of the possible solutions apply to your situation, then I am sorry for urging you to obtain legal advice, but from your post it does not sound like you are aware of these possible solutions. Keep in mind that the DHS memo that I cited was only published in November 2014, so if you obtained legal advice before then, you should obtain some new advice. And you may want to bring the memo (https://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf) to the lawyer as well and ask for advice on whether your partner can become a permanent resident by obtaining a grant of advance parole, leaving the country pursuant to the grant of advance parole, returning as a parolee as authorised by the memo, and then adjusting status to that of lawful permanent resident. Again, this technique may or may not apply in your specific situation, but you should at least obtain legal advice on whether it does help.
I appreciate the advice. We looked into the advance parole option, but it's only approved for humanitarian reasons (sick relative), education, or for work purposes (your job needs to send you somewhere for training). The only option that I read about people having success with was the humanitarian option. DACA recipients would provide a doctors note from a sick or dying relative requesting their presence in their home country to care for said relative. My wife literally knows no family back in her home country to even explore that option. Also, advance parole does not guarantee re-entry to the United States. It's still at the immigration officers discretion, so you're kind of taking a risk. I haven't read about anybody being denied re-entry with advance parole but it's still a scary risk to have to take. We only learned of the advance parole option a few months ago, so it's probably too late for that.
Advance parole is approved as a matter of routine during AOS. In fact, the EAD card that you apply for also serves as an advance parole document. Definitely, consult a lawyer about this but I would suggest filing for adjustment of status and advance parole and then making a quick trip outside the country. Advance parole entries can be denied in theory but in practice are rarely denied except if there is a serious criminal charge that makes the recipient ineligible for re-entry.
Now the downside is that the process of applying involves declaring presence to immigration so leaving the country silently and then filing for a visa is no longer an option without incurring a 10 year ban.
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... I would suggest filing for adjustment of status and advance parole and then making a quick trip outside the country.
As the earlier poster already seems to be aware, this doesn't work in his or her partner's situation because one of the requirements to apply for adjustment of status is generally that the "alien ... was inspected and admitted or paroled into the United States". 8 USC § 1255 (https://www.law.cornell.edu/uscode/text/8/1255)(a). Accordingly, persons who entered the USA without inspection are generally ineligible to adjust status (although there are a few exceptions). My earlier post discussed some of the possible workarounds, although there are others I didn't discuss. The viability of any possible solution is highly fact-dependent and I cannot express any view on whether there is a solution that will apply in any particular situation.
The purpose of this particular post is solely to explain why the solution is not as simple as just applying to adjust status. The alien generally needs to be admitted or paroled prior to applying to adjust status (although again there are a few exceptions).
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... I would suggest filing for adjustment of status and advance parole and then making a quick trip outside the country.
As the earlier poster already seems to be aware, this doesn't work in his or her partner's situation because one of the requirements to apply for adjustment of status is generally that the "alien ... was inspected and admitted or paroled into the United States". 8 USC § 1255 (https://www.law.cornell.edu/uscode/text/8/1255)(a). Accordingly, persons who entered the USA without inspection are generally ineligible to adjust status (although there are a few exceptions). My earlier post discussed some of the possible workarounds, although there are others I didn't discuss. The viability of any possible solution is highly fact-dependent and I cannot express any view on whether there is a solution that will apply in any particular situation.
The purpose of this particular post is solely to explain why the solution is not as simple as just applying to adjust status. The alien generally needs to be admitted or paroled prior to applying to adjust status (although again there are a few exceptions).
I understand that being inspected is a pre-requisite for adjusting status. However, it takes about six months to adjust status and USCIS is bound by law to adjudicate the travel document within 90 days. I was thinking that maybe OP could file for AOS and get the travel document and then make a quick trip outside the country before their petition gets denied.
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... USCIS is bound by law to adjudicate the travel document within 90 days.
I don't know if this is true. By regulation, USCIS will generally adjudicate an application for employment authorisation within 90 days, 8 CFR 274a.13 (https://www.law.cornell.edu/cfr/text/8/274a.13)(d), although there are some exceptions. However, there does not appear to be an analogous time-limit provision for advance parole applications.
Your idea could possibly be worth analysing and exploring further (I express no view on that), but note that "[w]hen an applicant seeks advance parole while a Form I-485 is pending, prima facie eligibility for adjustment is a significant favorable factor in determining whether granting advance parole is appropriate". PM-602-0023 (https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf) at *3 (Dec 2010) (emphasis mine). I take this to mean that if an applicant appears to be ineligible for adjustment (e.g. because the applicant entered without inspection), then USCIS expects to see some justification for why advance parole should be granted, rather than just granting it as a matter of course.
This is exactly why seeking legal advice will be very helpful to the above poster, because, if the above poster and his or her lawyer decide to seek advance parole, the lawyer will be able to help craft the advance parole application to put forth the most sympathetic and compelling case possible as to why it should be granted. Again, I express no view on whether this is the way to go, I am just saying that a lawyer can be invaluable in helping framing the case because the application may not be granted as a routine matter without justification.
Now the downside is that the process of applying involves declaring presence to immigration so leaving the country silently and then filing for a visa is no longer an option without incurring a 10 year ban.
The ground of inadmissibility triggered by departure after unlawful presence, 8 USC § 1182(a)(9)(B) (https://www.law.cornell.edu/uscode/text/8/1182#a_9_B), applies whether or not the government knows about the unlawful presence and departure. Attempting to procure an immigration benefit through fraud would be seriously ill-advised.
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I think pursuing advance parole is really the only option we have. Of course we would have to seek the guidance of a lawyer to craft the particulars of the advance parole application and so forth. From what I have read, my wife would also need a passport from her native country as well. Who knows how long that takes or how she would even do that. I assume she could go to her home country's embassy here in the States and do that? I'm not in the military so parole in place is not an option.
I think prior to us applying for DACA, she probably could have left the country silently, since there was no record of her entrance without inspection, and I could have applied for a fiance visa or something of that nature. That would have involved her staying in her home country for quite some time and traveling to Ciudad Juarez, which at the time was one of the most dangerous cities in the world, so we didn't want to do that. Now that she has DACA and has admitted her entrance without inspection, I don't think that is even possible anymore.
We really were counting on the Dream Act or some form of immigration reform passing through Congress to resolve this issue. Trump has stated that he will not support any form of amnesty for DACA recipients (Dreamers). I just fear that we won't have enough time to get her a Mexican passport, get the advance parole granted, and then make the quick trip before Trump eliminates these options.
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Cathy is right. See an immigration lawyer. Call one tomorrow morning at 9am.
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I think pursuing advance parole is really the only option we have. Of course we would have to seek the guidance of a lawyer to craft the particulars of the advance parole application and so forth. From what I have read, my wife would also need a passport from her native country as well. Who knows how long that takes or how she would even do that. I assume she could go to her home country's embassy here in the States and do that? I'm not in the military so parole in place is not an option.
I think prior to us applying for DACA, she probably could have left the country silently, since there was no record of her entrance without inspection, and I could have applied for a fiance visa or something of that nature. That would have involved her staying in her home country for quite some time and traveling to Ciudad Juarez, which at the time was one of the most dangerous cities in the world, so we didn't want to do that. Now that she has DACA and has admitted her entrance without inspection, I don't think that is even possible anymore.
We really were counting on the Dream Act or some form of immigration reform passing through Congress to resolve this issue. Trump has stated that he will not support any form of amnesty for DACA recipients (Dreamers). I just fear that we won't have enough time to get her a Mexican passport, get the advance parole granted, and then make the quick trip before Trump eliminates these options.
I don't believe you need a passport for applying for parole. You do need some form of ID for your fingerprinting appointment, though. Also, Advance Parole applications can be expedited for special circumstances. When my friend's father was sick he made an appointment to meet with a USCIS official through Infopass and he was able to get the document approved on the spot.
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I think pursuing advance parole is really the only option we have. Of course we would have to seek the guidance of a lawyer to craft the particulars of the advance parole application and so forth. From what I have read, my wife would also need a passport from her native country as well. Who knows how long that takes or how she would even do that. I assume she could go to her home country's embassy here in the States and do that? I'm not in the military so parole in place is not an option.
I think prior to us applying for DACA, she probably could have left the country silently, since there was no record of her entrance without inspection, and I could have applied for a fiance visa or something of that nature. That would have involved her staying in her home country for quite some time and traveling to Ciudad Juarez, which at the time was one of the most dangerous cities in the world, so we didn't want to do that. Now that she has DACA and has admitted her entrance without inspection, I don't think that is even possible anymore.
We really were counting on the Dream Act or some form of immigration reform passing through Congress to resolve this issue. Trump has stated that he will not support any form of amnesty for DACA recipients (Dreamers). I just fear that we won't have enough time to get her a Mexican passport, get the advance parole granted, and then make the quick trip before Trump eliminates these options.
I don't believe you need a passport for applying for parole. You do need some form of ID for your fingerprinting appointment, though. Also, Advance Parole applications can be expedited for special circumstances. When my friend's father was sick he made an appointment to meet with a USCIS official through Infopass and he was able to get the document approved on the spot.
You don't need a passport to apply for advance parole but you do need it to travel back and forth. At least you would need it in my case so that my wife can get an inspection stamp. Which she would need to apply for adjustment of status.
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A big thank-you to everyone who suggested an experienced immigration attorney. We have a lot of hope for a very favorable outcome in this matter.
After we got married, the attorney helped us submit an I-130 with a lot of documentation. After approximately 8 months, it was approved without the need for any interview.
We now just submitted an application for an I-601A waiver. The attorney said that they have had a 99% success rate with first-submissions of I-601A waiver applications, and that we had a really strong argument. The PDF of our application + all supporting documentation was about 600 pages. Our attorney also said that the I-601A decisions have been coming back from the USCIS in approximately 5 months timeframe. We are very hopeful, but still very stressed -- as this is "the big hurdle" in this process.
We have a clear path forward -- and after (god willing) an I-601A approval, we just need to do an AOS, DS-260, and then a medical exam and consular interview abroad, before being granted a visa and permanent resident status.
This is a very complicated process, and there's no way I would have felt comfortable doing it without the help of legal representation. Thank you for pushing me toward that route. It has been a little bit expensive, but in the end, I think it is well worth it!
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So happy that it worked out!
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This is a very complicated process, and there's no way I would have felt comfortable doing it without the help of legal representation. Thank you for pushing me toward that route. It has been a little bit expensive, but in the end, I think it is well worth it!
Thanks for the update! Don't worry about the cost, this is why we save money: to make difficult situations go away.
Good luck for the remaining applications.
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Congratulations OP!! Best wishes on the next stage of your journey together.
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Thank you for the update! Fingers crossed for a full and expedient resolution.
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What a lovely update - so nice to hear a hopeful story at this time. Thank you very much for coming back and letting us know, and best wishes for the rest of the process.
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Wow! Congrats! I started reading, was getting all invested and then noticed the year and was like, oh, is this a positive update, I hope so! And voila! It is. I can’t even imagine the amount of work you both put into this. Isn’t love grand?
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Congratulations! Your beautiful story reminds me of the old song True Love Never Runs Smooth
Stand beside me all the while no matter what goes wrong
Separately we're weak, together we'll be strong
Fo-or true love never runs smooth, but I don't care
'cause true love is worth all the pain, the heartaches and tears
That we may sha-are.
Stand beside me all the while no matter what goes wrong
La-la-la-la-la-la-la
When the world outside my arms is pulling us apart
Press your lips to mine and hold me with your heart
Fo-or true love never runs smooth, that's what they say
But true love is worth all the pain, the heartaches and tears
We have to fa-ace.
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Thanks to everyone for the encouragement and well-wishes. I'll give a few updates to some of the points I raised in my original post (wow, back in 2016! Time passes quickly!)
Taxes: We had no problem filing jointly. The IRS assigned an ITIN to my spouse. I even helped my spouse open up a spousal IRA. We reported my spouse's income that he earned in the year we got married and paid taxes on it, including self employment taxes. (Ouch! Considering we paid both employer and employee FICA taxes -- plus, nothing was withheld through the year from the cash job!) As my spouse is not officially authorized to work yet, we agreed that after we got married, he should stop working for now. We don't want to be actively breaking any rules while going through the process of trying to get an official immigration status.
Since he was no longer working, my spouse took advantage of the wonderful (and free!) adult education (GED and ESL) courses offered by our city. He completed both programs successfully in under a year.
Medical insurance wasn't a problem either. The HR folks at my employer allowed me to add my spouse to all of the benefits -- even before we were assigned an ITIN number. They helped me complete the web-forms with a placeholder tax ID.
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Thanks to everyone for the encouragement and well-wishes. I'll give a few updates to some of the points I raised in my original post (wow, back in 2016! Time passes quickly!)
Taxes: We had no problem filing jointly. The IRS assigned an ITIN to my spouse. I even helped my spouse open up a spousal IRA. We reported my spouse's income that he earned in the year we got married and paid taxes on it, including self employment taxes. (Ouch! Considering we paid both employer and employee FICA taxes -- plus, nothing was withheld through the year from the cash job!) As my spouse is not officially authorized to work yet, we agreed that after we got married, he should stop working for now. We don't want to be actively breaking any rules while going through the process of trying to get an official immigration status.
Since he was no longer working, my spouse took advantage of the wonderful (and free!) adult education (GED and ESL) courses offered by our city. He completed both programs successfully in under a year.
Medical insurance wasn't a problem either. The HR folks at my employer allowed me to add my spouse to all of the benefits -- even before we were assigned an ITIN number. They helped me complete the web-forms with a placeholder tax ID.
Wow, good stuff. That last paragraph actually made me smile. Who'd a thunk HR would be so accommodating? Good on them and good on you and your spouse.
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Who'd a thunk HR would be so accommodating? Good on them and good on you and your spouse.
Not surprised. When same-sex marriage became legal, my HR department bent over backwards to make sure all employees understood and could take advantage of policy changes. More generally, there's been a big inclusivity push in the field. Sorting out unusual situations is basically why they're here.
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@myownpath, very very happy for you and your husband.
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Wow! Congrats! I started reading, was getting all invested and then noticed the year and was like, oh, is this a positive update, I hope so! And voila! It is. I can’t even imagine the amount of work you both put into this. Isn’t love grand?
Ditto...PTF
Hope to hear more success as you make your way through the rest of the process.
I had a friend in a same sex relationship move with his bf to the UK. His bf is a UK citizen and was in the US with a student visa. His UK visa request package was well over 1000 pages.
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Wow! Congrats! I started reading, was getting all invested and then noticed the year and was like, oh, is this a positive update, I hope so! And voila! It is. I can’t even imagine the amount of work you both put into this. Isn’t love grand?
Ditto...PTF
Hope to hear more success as you make your way through the rest of the process.
I had a friend in a same sex relationship move with his bf to the UK. His bf is a UK citizen and was in the US with a student visa. His UK visa request package was well over 1000 pages.
I, too, started reading, and then when I realized the OP was long ago cringed as I anticipated a bad outcome.
I’m so please for you that things seem to be working out. That is definitely not a given in the current climate.
It’s wonderful to see a hopeful “love wins!” story!
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This is super wonderful. Congrats, OP. <3
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Great update. Good luck.
I also had the thought reading the original thread that it would be worth considering other countries (UK, New Zealand, Canada, etc.) since you are both educated and employable. The US can can do harsh with immigration policy.
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Please keep us posted. We all actually care. We would especially love to hear a happy ending story but, if not, perhaps one of us has an in at an overseas job in a mutually workable country.
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Update: My husband and I are absolutely thrilled that our 601A waiver was approved, without any requests for additional evidence!
The next step is to get him scheduled for a medical exam and for him to attend an immigrant visa interview at the US embassy in his home country.
However, those interviews are not being scheduled right now, due to COVID. We really have no idea when they will resume scheduling interviews, nor how long of a back-log there might be, whenever operations resume.
It's bitter-sweet to hit this monumental milestone of getting the waiver approved -- but still being faced with an indefinite wait.
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@myownpath still all positive news. congrats
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Splendid news about the waiver - that's the difficult bit done, I think?
A lot of plans have had to go on hold because of the pandemic, but this too shall pass.
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So glad things are working out. Posting to follow. My spouse is still on a conditional green card and we soon must jump through the hoops to get his ten year card. We are well familiar with waiting. And waiting. And waiting.
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Good luck! My DIL was here on a green card and took the citizenship test as soon as she could.
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congrats!!
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Congrats OP and best wishes during your waiting period!
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Congrats!
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Hey everyone, I thought I'd just give one final update - It's great news!
My husband is now a lawful permanent resident! I can't even describe how happy we are!
This whole process has taken a little over 4 years in total.
- about 1 year to get an I-130 approved
- about a year and a half to get an I-601a waiver approved
- about a year and a half to get an immigrant visa interview appointment scheduled and get the visa approved (I think most of the delay here was due to covid.)
Thank you to everyone who suggested that we hire an immigration attorney. I'm so glad we did. We received great advice and were expertly guided through this process. The packages our attorney prepared (For our petition and waiver) were compelling enough that we didn't have to attend any interview to prove our marriage, and we did not receive any "Requests For Evidence" either. Everything (that we had control over) went very smoothly.
It now feels like we can finally "get on with our lives!"
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Congrats! Now that your husband has his green card, I would recommend applying for Citizenship as soon as he's eligible.
Looks like he meets the 3-year exception:
Exception for People Married to a U.S. Citizen. If you are a permanent or conditional resident married to – and living with- a U.S. citizen for the past 3 years, you may apply for your United States citizenship at the end of those 3 years. Even if you do not have a marriage-based green card, this rule may apply to you. For instance, if you came to the U.S. with an employment-based green card and married a U.S. citizen shortly after arriving, you may apply 3 years from the date of your marriage. You must, however, provide proof of the marriage and you must stay married to your spouse throughout your entire interview process- you cannot divorce, separate, or even move out without losing this exception.
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Congratulations, and thank you for coming back to the forum with such excellent news. I hope you and your husband will be happy together for many years to come.
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Congratulations to you both. Thank you for spreading a little of your own happiness around the world :)
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Wonderful news. Thanks for the update
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Congratulations to both of you, @myownpath!
Thanks for explaining what worked. Will pass that on to my friend considering marriage with a few overlapping characteristics.
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Congrats!!!!!
Thanks so much for the update.
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Congrats and good job! I would have been very tempted to find a different country that would have been less work. Good for you for sticking with it and succeeding!
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Hey, wait! Why is this a "final update"? We want to hear more of your story!
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Congratulations <3
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Wow, that was quite a slog. Glad it turned out well for you both.
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That's really awesome, congrats!
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Congratulations! As someone who just got her own green card last month, I can relate to the agony of waiting, and waiting, and wishing, and hoping...
I hope you and your spouse have a great start to your life together in the States!
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Hey, wait! Why is this a "final update"? We want to hear more of your story!
I imagine it would get cumbersome to keep multiple usernames updated. MyOwnPath created this new username because of the sensitive nature of the topic, and to keep this topic separate from his other posts. He probably has less reasons to maintain anonymity now that his spouse has a greencard, but if he still wants the topic separation, that could be the reason for the "final update".
Congrats on the achievement OP!
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Hey, wait! Why is this a "final update"? We want to hear more of your story!
I imagine it would get cumbersome to keep multiple usernames updated. MyOwnPath created this new username because of the sensitive nature of the topic, and to keep this topic separate from his other posts. He probably has less reasons to maintain anonymity now that his spouse has a greencard, but if he still wants the topic separation, that could be the reason for the "final update".
Congrats on the achievement OP!
You have an excellent memory, @yachi! OP stated that in their original post a long time ago, but I didn't remember. Either way, I'd love to hear how things progress, just as I love it when @Adventine apprises us of the new adventures in her life. There is so much crap red tape that immigrants have to deal with, I just wanted to send a message that was welcoming and inclusive.
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Congratulations. I just found your story and have read the lot. I love a happy ending! Lovely thing to have in my day.
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Hey, wait! Why is this a "final update"? We want to hear more of your story!
I imagine it would get cumbersome to keep multiple usernames updated. MyOwnPath created this new username because of the sensitive nature of the topic, and to keep this topic separate from his other posts. He probably has less reasons to maintain anonymity now that his spouse has a greencard, but if he still wants the topic separation, that could be the reason for the "final update".
Congrats on the achievement OP!
You have an excellent memory, @yachi! OP stated that in their original post a long time ago, but I didn't remember. Either way, I'd love to hear how things progress, just as I love it when @Adventine apprises us of the new adventures in her life. There is so much crap red tape that immigrants have to deal with, I just wanted to send a message that was welcoming and inclusive.
I'd love to take credit for the good memory, because the reality less ego stroking. When I saw the thread pop up, I started reading as if it were new. When I realized it was not, I scrolled to the end for the update.