my boyfriend is here illegally. His parents brought him here when he was a minor. We want to get married. What should he do? Does he need to go back to mexico? Can we get married in the US? Can he become legal?
3 Answers from Attorneys
Once you are married then you may want to file a marriage based immediate relative case. The visa can be sent to him at the Consulate where he can go to pick it up. Since he has been in the States illegally, the Green Card case will be denied because he is barred under 212 (a)(9). However, since he will be married to a US Citizen he can try to make a waiver application at the Consular Office (which will be adjudicated by CIS authorities outside the US). If the CIS feels that the is "extreme and unusual hardship" to you then they can give your husband the green card. This is a very difficult case to do and it has many nuances so we definitely recommend that you retain competent immigration counsel to assist you. For more information about the process, or if you should have any questions, please feel free to visit our website at www.visaserve.com.
How this is done and likelihood of success depends most likely on the manner of his entry. If he entered without inspection, then a petition or labor certification for himself or one of his parents (assuming he was under 21 at the time a petition for one of his parents was filed) must have been filed before April 30, 2001 to process in the U.S. If he has that, then there is no problem, assuming no other things are going on that affect his admissibility. If no petition or labor certification was filed, he'd have to process outside the U.S., in Ciudad Juarez which makes it harder. His "unlawful presence" must be overcome by a showing of "extreme hardship" to you (not "extreme and unusual hardship" as mentioned above). Approval rates of these cases is rather political and change over time. Currently many people are seeing these cases denied, but there are always successes even when most are not. I would be happy to help you out if you contact me offline.
Check me out at http://www.yardum-hunter.com, phone at 818 609 1953 or email me at firstname.lastname@example.org. Until then, please don't rely on this as legal advice.
Alice M. Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization
A “Super Lawyer” 2004 – 2009, Los Angeles Magazine
If you get married and petition him through marriage, he may not be able to stay in the U.S. to obtain his green card, unless he has a previous immigrant petition filed for before April 30, 2001. If he does not have the protection, then even if you file a petition for him, he would be required to leave the U.S. to his home country to obtain a visa for his permanent resident status. However, please note that once he leaves the U.S., he may be subject to a 10 year bar, since he seems to have overstayed (illegally) in the U.S. for more than 1 year since he last arrived. This is why it is risky for him to leave. If he does leave, he may qualify for a waiver by showing extreme hardship, which may allow him to enter the U.S. before his 10 year bar has passed. However, this is discretionary, depending on the officer reviewing his case.
To discuss your options further, please contact me directly at 714 288 0574 or email me at email@example.com. Our office offers a FREE initial consultation and payment plans.
Note: The above response is provided for information purposes only and should not be construed as legal advice, nor to create an attorney-client relationship, which can only be established through payment of consideration.
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