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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Abogado
Categoría: USA Ley en Español
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im an American citizen married to an illegal from elsalvador.

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i'm an American citizen married to an illegal from elsalvador. I have filed for his papers in order to legalize him and we found out he has a deportation since 2005. We got an interview for february 28 with immigration. I believe our attorney filed a I-130. Our attorney contact us to advice that since we had an interview with immigration already, my husband would not qualify for the new law coming out March 4. We are extremely confuse: can they deport him during this interview? if he does not qualify for the new law march 4, does he have to leave for 10 years because of his deportation? can we cancel the interview to apply for the new law? if not, what is the nest step? how can we stop him from having to leave for 10 years?

Hello. Thank you for using our service. All I ask is that before you sign off, you rate me positively. If you are inclined to use the "poor service" or "bad service" options, please ask follow-up questions first and give me a chance. Sometimes the law doesn't have a good solution, but I will try hard to find it if it is available.


Well, it isn't a new law, it is a new process. But I will go into that in a moment. How did he enter the U.S.? Illegally or with a visa? Which visa? When did he enter the U.S.? How old was he when he entered the U.S.? And the interview on the 28th is with USCIS for the I-130? Did you file the I-130 specifically for the new process that is coming out in March? Did you have an attorney when you filed it or you hired this attorney after? Please try to answer each question. Thank you.


Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, 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!

Cliente: escribió hace 5 años.

he come in illegally.


he enter the USA in 2005 and he was 18 years old.


the interview is with USCIS and we filed I-130. it was filed before the new law come out, we had an interview in November but they cancel it because we needed and translator.


We have an attorney since 2010 involved on this, at the time we did not even knew my husband had a deportation. So our attorney is involved since the beginning of the process.

Ok. He entered too late for TPS and he entered too old for Deferred Action. Your attorney probably should not have filed anything for you since there really is no way your husband can get Residency without leaving the U.S. because of his illegal entry (much less his deportation). I'll explain the whole thing to you. 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 this 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 you have already done), 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 you, 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:



Unfortunately, because he has a deportation, he will ALSO need a 2nd waiver. That waiver can be found here:




The worst part of this news is that he will have to be outside of the U.S. for at least 1 year before he can apply for the I-212 waiver for the deportation.


And about Obama's new law, it isn't a new law. It is a new procedure but I think it could be 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 (or will change in March) is that before, 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 may be 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, I would wait at least 6 months or more after they implement it (which is supposed to be in March of this year) to see how many of those pre-approvals turn out to be true approvals at the end and to see how many of those people actually come back. Here is an official link:



Keep in mind, that in order to qualify, it is ONLY the hardship of a U.S. Citizen or U.S. Lawful Permanent Resident spouse or parent that counts. The hardship of children does not count.


ALSO, remember that even if he gets the I-601A approved, he still needs the waiver for the deportation and he can only apply for that waiver after he has been outside for at least 1 year.

I am truly sorry for the bad news, but the options are very limited at the moment. So what can happen now? Well, you can go to the I-130 interview and hope that he passes (I don't see any reason why he should not) and then you can try the new I-601A process that is coming out in March by filing the I-601A. Is there a chance that he could be detained at the I-130 interview and placed in Removal Proceedings? Yes. But speak to your attorney (or another one since I am not sure that this attorney knows what he is doing or he just wanted to charge you and didn't care what the eventual consequences were), and see what he or she can do to reduce the possibility of him being detained at the I-130 interview. Again, I am truly sorry. You can look for an attorney at http://www.ailalawyer.com/. Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, 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!

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