Married to USC, have DACA approved and EAD

Hello fellow DACA peeps. I am in need of some help/advice.

I was wondering what my next step should be now that I have these documents and am married to a USC.

I entered the U.S legally as an infant, as a visitor (B2) and over stayed for 25+ years.

When I was 12, my family tried to adjust status by advice of an attorney. He tried to argue that if we were to be deported my younger sibling a USC (then an 10yr old) would experience extreme hardship. That didn't work out as the attorney had assured us it would, and the judge gave us an order of deportation. This was around 1998.

Fast forward to now, I have been married to a USC since 2005 and I tried to adjust status then. But I started the process and I took too long to proceed with that and all my petitions were canceled. So I think that I have to start over.

Do I qualify for AOS? Do I even qualify for 245i and if I do, should I submit it or is it not necessary that I send that if I qualify for a regular i-485

Do I submit a new i-130 (spouse petition) and i-485 (AOS) "concurrently"?

Thanks in advance

To answer your questions:

Do I qualify for AOS? No, you were ordered removed in 1998 and do not qualify for this YET.

Do I even qualify for 245i and if I do, should I submit it or is it not necessary that I send that if I qualify for a regular i-485.

You do not qualify for 245i, either for the same reason. In fact since you entered with inspection you dont need a prior petition your first entry with a visa qualifies you for AOS under 245a. No do not submit any forms as you are not allow to proceed with the adjustment.

First thing you need to do is Hire an attorney. An attorney can help you motion to reopen the order of removal issued to you in 1998. Once your case has been re-open and terminated only then can you move forward with an adjustment of status. Otherwise you will be wasting your money.

txgirl: Thanks for replying Now you got me thinking about the "motion to reopen", I assumed it wouldn't be necessary now.

I thought that having a DACA approval would qualify me to apply for an i-485 since I am now lawfully present, and have been married to a USC.

From the USCIS website:

Who May File I-485:

- A person with an underlying immigrant petition (I-130, I-140), or will file along with an immigrant petition concurrently, and a visa number is available (this group include most family-based and employment-based applicants).

My spouse will be filing an i-130 for me.

And under "who is not be eligible" the only thing I saw that would probably apply was
- Person's authorized stay expired before filing i-485
(Over stayed my B2 visitor visa)

But wouldn't a DACA approval and EAD negate that? Since technically now I'm authorized to stay, as long as they are valid.

I filed the DACA application myself, despite my deportation order, without any problems and without the help of an attorney. I felt like I could handle this myself since it should be safer and easier now.

There is a handfull of process that will still be approved even after a order of removal exist DACA is one of them (TPS, Uvisa, VAWA are among the others) but in order to be approved for I485 you have to be admissible to the US and you are no longer admissible because you have a final order of removal.

Trust me you need an attorney to do this, a motion to reopen can be handle much much better with attorney if you hire someone with experience, they will reach out to the trial attorney (DHS) and see if they would join on the motion to reopen the fact that you have DACA now can make your case stronger. IF you insist in not hiring an attorney, at least consult one.

Please be aware that you are only allow to do ONE motion to reopen so if you are going to do it yourself make sure it is good.

Oh wow, I didn't know about the last part that you mentioned.

I do have an attorney. He already had filed a "motion to reopen" a few years ago and that was denied. I wish I knew why.
I was already married for a few years at that point. Hearing that it was denied, made me break down in tears.
My attorney then told me to just wait and see if any laws/legislation would pass to help me out. Then came the DACA executive order(thanks Obama). But now I'm feeling like this is only temporary and I will be back to zero once it expires. I went back to him a few weeks ago to see if there was any hope, and he gave me hope. I don't know exactly what he is going to do. I was assuming that he would file another motion.

Under 8 CFR 1003.2

(2) Except as provided in paragraph (c)(3) of this section, an alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.

20. A properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition filed on the alien's behalf, where: (1) the motion to reopen is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) clear and convincing evidence is presented indicating a strong likelihood that the marriage is bona fide; and (5) the Service does not oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992) (holding that motions to reopen to apply for adjustment of status under section 245 of the Act will not be granted without an approved visa petition on the alien’s behalf). Matter of Velarde, 23 I&N Dec. 253 (BIA 2002) (modifying Matter of H-A-, 22 I&N Dec. 728 (BIA 1999), and Matter of Arthur, supra). See also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (determining that Matter of Velarde permits granting of a motion to reopen in these circumstances as a matter of discretion, unless barred on procedural grounds); Malhi v. INS, 336 F.3d 989 (9th Cir. 2003) (citing Velarde with approval, upholding denial of motion for failure to make prima facie showing of valid marriage).

What state are you in? See where it says that as long as the "service" doesnt oppose? Maybe have your lawyer try to get DHS to join on the motion.

You either really know your stuff or have excellent research skills or both. Thanks for taking time to answer my questions. I really do appreciate it.

I'm from Fla. But would it matter what state I'm in, since these are federal issues?

In the case I had mentioned about me having an order of deportation from 1998, my mother was also included in that case. She was able to reopen her case and she obtained her green card on a petition from my younger U.S born sibling.

I now have little hope and don't understand why USCIS/DHS/etc denied me a motion to reopen while my mother was able to reopen hers. At that time I had no arrests and had lived here for 25+ years (since I was a few months old) and was/am in a real marriage to a USC. Like, on what grounds do they base their decisions? Why can't they give a reason?

Now I have an arrest on my record (charges dropped), which I believe would be a negative thing in their minds, but also have DACA approval and an EAD which I presume would help out this time around.

I just hope my atty, who handled my previous motion to reopen and also my mothers case, has better luck this time around.