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If you are a permanent resident alien, or a US Citizen and you want to petition for one of your family members, I can handle your petition. I can also help you prepare your application for Naturalization, or to renew TPS, or to renew your "Green Card". I don't handle employment-based petitions or removal cases, but you may email me and I can recommend other excellent attorneys.
I do a lot of cases involving Provisional Waivers. These are waivers for spouses of US Citizens that entered without a visa and have been living in the United States for more than 6 months.
Q. If I am a Legal Permanent Resident, can I apply for my parents or brothers or sisters?
A. No. You must be a US Citizen to petition for parents or siblings.
Q. If I am a US Citizen and I am married to an illegal immigrant, can I apply for him to receive permanent residency?
A. Maybe. If your alien spouse entered with some type of visa or under the Visa Waiver Program or with a Border Crosser card or as a Canadian, then your spouse may be eligible to adjust status, even if they have overstayed their stay or even if they have worked illegally. If, however, your alien spouse entered "illegally", then they cannot adjust status (unless they qualify for an exception, most common of which is having an application pending since before April 30th, 2001). However, you can still apply for them to receive their residency, but they must leave the country and make final application at a consulate abroad. If they have been present for more than one year "out of status", then they will need to have an approved hardship waiver to return. This waiver is the I-601a waiver. I can help you with this waiver and the process. However, if your spouse was present for more than one year out of status after 1997, and then left the US, and then returned again, then the waiver is not available, and under current law your spouse may not be able to receive residency. I welcome you to contact me if you are in this situation and I will help you understand your options.
Q. Is there going to be a change in the law soon?
A. Immigration laws change *every single day*. However it is difficult to say when the next major immigration reform will be. On the one hand there is much agreement that our current system is unworkable, but there is a lot of opposition to giving any type of relief to those who are present illegally. I personally believe that because it is such a big issue that something will happen soon (in the next couple of years), but it is impossible to predict what form the changes will take. However almost every reform plan proposed includes requisites of a clean criminal record and history of paying taxes.
Q. Is it possible for me to get a green card through my children who were born here?
A. Not until they are 21 years old. If they are already over 21 than they can petition for you if you entered the United States "with inspection" (legally).
Q. What is the 601a Waiver?
A. The I-601 is a waiver of bars of inadmissibility. There are many people that at this moment have a way that they can apply for residency or a visa, except for the fact that they have been here illegally in the past, or they are here illegally now. The I-601a waiver allows a person to apply for the bar to be waived. For example, if a US Citizen wife is married to an illegal alien who entered illegally (without inspection or a visa), then the alien can apply for residency, and would qualify if it were not for the bar of inadmissibility caused by his having been in the US illegally. However, if the alien was in the US for more than 6 months illegally after 1996 and after turning 18, then he cannot receive residency, and he cannot return to the US. That is when he can apply for a 601a waiver. If approved, he could then return to the US with his residency.
Q. How do they decide whether or not to approve a 601a waiver?
A. If the waiver is requested for an unlawful presence, than the decision to approve would be based on hardship to a US Citizen spouse or parent. One must include a letter with evidence supporting that the spouse or parent would suffer an exceptional hardship if the alien could not return to the United States. It is not sufficient to describe how difficult it would be for the citizen to live in the foreign country, but also why it would be hard for the citizen to live apart from the alien by remaining in the US. Getting the case approved will depend on whether the evidence provided proves the claims that are made in the letter.
Q. If my spouse needs a 601a waiver- is it likely to get approved?
A. It depends. In general the rate of approval is fairly high. Waiver applications prepared by an attorney are very high. The majority of waivers that are denied are because they were not well prepared or because they did not include good quality evidence to support the hardships. A small percentage of waivers are denied because the applicant actually was not eligible to file a waiver. An attorney will screen those cases out so that the client does not waste their time and money.
Q. Does the alien need to stay outside the US while the 601a waiver is being decided?
A. No. A person can now apply for the I-601a waiver without leaving the country. They will need to leave the country for a few business days in order to receive their residency. However for cases where the applicant is only inadmissible due to unlawful presence (and not for misrepresentation, alien smuggling, or criminal activity), the applicant can stay in the United States with their family until they are approved for the waiver.
Q. Is it really necessary for a spouse to leave the country to get his/her residency?
A. If that spouse entered illegally, then almost definitely he/she will have to leave the US to get residency. Exceptions would be for certain nationalities, or for people that had some time of application grandfathered under 245(i) by being filed before April 30, 2001, or for those present over 10 years applying for Cancellation of Removal, or for people that are still under 18 1/2 years old. But the grand majority of applicants that entered illegally will need to leave the country to get their residency.
Q. How do I apply for my spouse if they did enter the country with a visa or other type of inspection (Border Crosser Card, or as a Canadian, or under VWP)?
If your spouse entered with some type of inspection, he or she will probably be able to apply for Adjustment of Status. That means that they will not need to leave the country, and will not need to file a Hardship Waiver. This is true even if your spouse has overstayed their visa, even for many years.
The supporting documents I will need from you are: Birth Certificates for both of you, the marriage certificate, proof of income and tax forms for the last three years, any prior divorces, 5 photos of immigrant and one of the citizen, and copy of bio page and visa from immigrant's passport. I will also need a list of all addresses, work places, and children for each of you.
The information contained in this site is not, nor is it intended to be, legal advice. Please feel free to contact me directly regarding the facts of your particular case.
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