He is here in the US and has been for many years but came illegally. He had heard somewhere that the law may change this year for those that are married to American citizens. So I don't know if you or anyone can help us to get him legal here. I know everything has changed and it's not easy and maybe not even possible. It breaks my heart. Any ways I could tell a big long story but I'm just looking for some answers. Thanks.
Unfortunately, the only forgiveness that existed for entering illegally was under INA 245(i) which states that if he had an I-130, I-140 or Labor Certification properly filed for him ON or BEFORE April 30, 2001, AND he could prove that he was inside the U.S. on December 21, 2000 unless the I-130, I-140 or Labor Certification was filed on or before January 14, 1998, and then he could pay a $1000 penalty and adjust status to U.S. Lawful Permanent Residency. If he did not have any of those types of applications filed for him before that date, then he has three options:
1) Wait for an immigration law to come out that will help him. I have high hopes that next year or maybe the following, something good will come out.
2) Apply for Asylum (he had to have done this within the 1st year be being in the U.S. unless there are changed country conditions), Withholding of Removal, Convention Against Torture, or Cancellation of Removal. The first three things are if he fears to return to his home country because he believes that he will be specifically targeted due to his race, religion, nationality, social group or political opinion and that he runs a high risk of great bodily injury, torture, or death as a result. The last, Cancellation, he would have to prove that he has at least 10 years in the U.S. AND he must also prove that if he is deported, a U.S. Citizen or Lawful Permanent Resident that depends upon him will suffer exceptional and extremely unusual hardship. This hardship must be something more than emotional separation hardship or financial hardship, so it is difficult to get.
3) Since he is married to you, a U.S. Citizen, he could file an I-130 here in the U.S. (which will give him no legal status), but once that I-130 is approved, really the only thing he can do is leave the U.S. and apply to come back in at the U.S. Embassy/consulate in his home country as the spouse of a U.S. Citizen. At that point, they will want to deny him because he entered illegally and stayed. So he would have to apply for an I-601 waiver (forgiveness) and to get this waiver he will have to prove that his spouse will suffer extreme hardship if he is not allowed back in to the U.S. These waivers are very difficult to get. The reason they are difficult to get is because the hardship probably will need to be more than just economic hardship or emotional separation hardship. So because they are difficult to get, no one wants to risk leaving the U.S. and getting stuck outside for 10 years if it isn't granted.
You can look at this link to get more information on I-601 waivers. It is from the U.S. Embassy in Syria, but it is a good description and the process should be similar in all U.S. Embassies.
and here is another link:
And here is a link to what extreme hardship is:
And about Obama's new law, it isn't a new law. It is a new procedure but I think it is a trap. Why? Because right now there are millions of undocumented persons in the U.S. that are married to U.S. Citizens and even have U.S. Citizen children but they do not leave because they are afraid to be stuck outside for 10 years. What has changed is that before (and until they implemente the change which will take a year or so), a person had to leave the U.S. and spend around 15 months or so while waiting for their appointment at the U.S. Embassy or Consulate in their home country and then HOPE that they got approved, but the change is that now they say that the same person can apply inside the U.S., supposedly get a pre-approval, but they still have to leave the U.S. and present themselves to the U.S. Embassy or Consulate. So why do I think it is a trap? Because it could very easily be a way to just get those many millions of people to finally leave the U.S. and once they are outside, they can still be denied the waiver even though they have a "pre-approval". I just don't trust that. So at the very least, it will be a year before it is implemented and I would wait at least 6 months or more to see how many of those pre-approvals turn out to be approvals at the end.
I am truly sorry for the bad news, but the options are very limited at the moment. Please let me know if you have any additional questions. I would be happy to answer them for you without additional charge. If there is a delay in getting back to you it is either because I am answering other questions or I had to log off, but I will be back with you as soon as possible. It is VERY important that if you are not satisfied, please ask additional questions. My goal is to provide you with top-notch service. And please don't forget to rate me, but please rate me on my service to you, not the state of the law because I have no control over that. Also, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!
Is the no addtional charge only apply to the time we are talking now or is it for further questions in the future pertaining this subject.
Thank you for your quick response and all the information. I guess it's still a waiting game. It just makes me sad that all these immigrants are here and many have been here many many years and risked their life to come here for a "better life" and have no way of going thru a process of becoming legal. That's what they really want to do. They want to be here legally and be able to visit their families in their home country and be able to come back to their families here.
One day I am going to write a book about their stories of how they came here and their REAL hardship they had to go thru to come here. I have heard many and have seen them when they have arrived at a family members home here in the US and am saddened by their condition. They may not have eaten anything in days and so on I know you know their stories as you have been doing this for many years. I just wish I could do something or say something to help change these laws.
I can't think of any more questions at this time. I'm not sure how this service works but if I have anymore questions I will look you up. Thanks again.