Legalization and Immigration Options FAQ

We get a lot of posts in Off Topic and other areas of the board in which people are asking about other options for legalizing their status. I've probably made the same post about marriage, among other things, a bazillion times in the past week, so I figured it might be a good idea if I just made a post that explained all of the options open to dreamers in regards to legalization and, if it comes to it, immigration to another country. I'm trying to make sure I put a source to everything so that you can verify the information for yourself, and if you note a mistake or have another option to suggest, then please post saying so. As you all should now, individual situations may vary and you should always consult a lawyer before attempting any form of legalization or immigration. This is a starting point.

Also, I iz st00pid, so I can't make my post all pretty.

I. Legalization.

We are all hoping for the passage of the Dream Act. However, we do not know when that will happen, and in the meantime, if you have another option to legalize yourself then you should take advantage of it. Below are all (I think) the ways to legalize your status in the US.

A. Bans and unlawful status.

According to the Immigration and Nationality Act 212(a)(9)(B)(ii)(I), any unlawful presence that you accrue while you are a minor is exempt.

" (iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I)."

However, once you turn 18, you start to accrue presence. By 180 after your eighteenth birthday, you will have acquired a three year ban from the country, which will be initiated once you leave the U.S. Once you have accrued one year of unlawful presence, that will become a ten year ban. If you leave the country while you have the three year ban and attempt to enter within three years, the ban will become a ten year one. If you leave the country with the ten year ban and attempt to enter within ten years, that will become a permanent ban and will not be waivable until you have been outside of the country for ten years.

"
(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) ) prior to the commencement of proceedings under section 235(b)(1) or section 240 , and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible. "

If you are not yet 18 1/2, you can leave the country and apply to immigrate here legally and the unlawful presence will not be held against you.


B. Marriage/Engagement.

Scenario 1: I entered without inspection.

Entry without inspection is defined as unlawful entry. This means that, rather than entering the United States on a valid visa, you crossed the border through some other manner. This could include being smuggled over the border and hopping over the fence, among other things. If you entered the country through a border checkpoint, but did so fraudulently, then you are considered to be an overstay for purposes of marriage and will not be included in this category.

If you entered the country without inspection, even if you did so as a minor, then you are not allowed to adjust your status in the U.S. In order to do so, you must leave the country and go through consular processing to get your visa. In order to overcome the ban for unlawful presence, your spouse will have to file a waiver on your behalf, called the I-601 waiver.

Only a U.S. citizen can file a petition for their fiancee, so if you are engaged to a legal permanent resident, then you will have to get married before initiating the process. If you are engaged to a U.S. citizen, then you can file the I-129 (which costs $455), petition for alien fiance.

If you are married to a U.S. citizen or a legal permanent resident, then you can file the I-130 petition for alien spouse. This costs $355. Filing the I-130 means that you will have to wait longer for an interview, but if you want to go faster then, once you have been notified of the receipt of our I-130, you can file the I-129 as well. This will get you a quicker appointment, but once your visa is approved you will have to file adjustment of status when your spouse enters the U.S., form I-485, which costs $1010. Do what you will.

Once your form has been received, you will receive a notice of action, which means it is pending. You might get a couple of these. Then you will get a notice of approval and after that several forms.

DS-3032: This is the choice of agent form, and is used to put the address where everything else in the process will be sent to. If you have a lawyer handling your case, then you can choose them. If not, then you can put down your own address, but if you intend on moving it is better to choose an address of someone you trust so that you don't have to go through shit trying to change your address with USCIS.

Affidavit of support bill, and the affidavit of support form (I-864). In order to have your application approved, your U.S. citizen/LPR fiance/spouse must be able to prove that their income is 125% of the poverty level. There are ways to get around this. If your spouse/fiance does not make that much, then they can get a co sponsor.

Visa application, DS 230, part 1.

After you have sent all of that paperwork to USCIS, they will schedule an interview for you. Normally, you will receive notice of this a couple of months before the date. If you filed a fiance petition, then you will receive an open appointment instead of an exact one. You do not have to leave the country until the time of your interview, BUT your status does not change during this time. You are still eligible to be detained and deported, just like you were before the petition was filed. Once you leave the country for your interview, the ban kicks in, and you cannot return until you have been approved or you will initiate a permanent ban.

Before your interview, you will have to get a medical exam and vaccinations. If you are being sponsored as a fiance, then you don't have to do this until you've been admitted to the U.S., so long as you do it before you file for adjustment of status. You'll get a packet with your exam information, which you'll bring to the interview. Normally you have the exam the day before the interview. Don't open your packet.

Then you will go to your interview. SPOILER ALERT. You will be denied entry, hands down, because of your previous unlawful status. In the interview, inquiries will be made to make sure that the relationship between you and your U.S. citizen/LPR is legitimate and about your past immigration mishaps. After they figure out that you are denied, they will try to find out if you can file a waiver.

The I-601 waiver is not a given. In order to be approved and move on to getting your visa, you have to show that your US citizen/LPR spouse/fiance (not you yourself) would suffer extreme hardship if they were to be separated from you for the length of the ban, or if they were to have to live with you in your home country for the length of the ban. If you have a criminal record or a record of drug use, it's possible that you will be unable to file the waiver until you have been out of the country for three years, but this is up to the interpretation of the consulate.

So, what is extreme hardship? While it may seem impossible emotionally to be separated for a period of ten years, that is a given and is thus not considered extreme hardship. In order to have your waiver approved, your spouse/fiance needs to show that their hardship would be above and beyond that.

FANTASTIC examples of hardship: your US citizen/legal permanent resident has a major condition that prevents them from moving to another country and that makes it to where they absolutely need you here to care from them; your US citizen/LPR has a relative who is inferm, disabled, elderly to the extent that they have to spend at least an hour a day caring for them or most have them under their constant care, and there is no other relative that is able to do this, and because of this constant care the US citizen or LPR would need you to help them take care of things; your country is at war, or some other crazy shit is going down.

GOOD examples of hardship: your US citizen/LPR already has a kid from a previous relationship and due to custody issues would be unable to move abroad with the child, and would be unable to be separated from you because the child has grown emotionally attached to you; due to a medical condition (like a major surgery with a long recovery period) that your US citizen/LPR has, it would be hard but not impossible for them to move out of country and they need you to care for them; your spouse/fiance has a relative who is usually able to take care of himself but occasionally needs a lot of extra help, and they would need your help during those times; your spouse/fiance is providing long term major financial support to a relative of theirs; your country is about to go to war, some shit is about to go down their, or it has a history of oppression which would affect your spouse/fiance.

OKAY examples of hardship: your spouse/fiance has a child from another relationship who does not have much of a relationship with you yet, and whose other parent would not let your spouse/fiance move abroad with; medical condition on part of your spouse/fiance that would make it inconvenient to leave US; clinical depression on part of spouse/fiance caused by immigration problems; you and your spouse/fiance have kids together and your country has bad public health, sucky education, etc.; your spouse/fiance has a job that needs a license, such as a doctor, and it would be hard for them to get that license in your country; your spouse/fiance has job training/degree/etc that would only be useful in the US, such as a tax consultant; your country has a bad economy; your spouse/fiance has a relative who they occasionally help out financially, or who they might need to help out physically in the near future.

POOR examples of hardship: your country has high unemployment or crime; your spouse/fiance has a lot of debt they need to pay off; spouse/fiance is depressed but has not been diagnosed by a professional; spouse/fiance's parents are getting old.

Your waiver packet should include the I-601 form, a hardship letter explaining why your spouse.fiance would suffer extreme hardship if you were denied entry, and supporting documents to prove those reasons for extreme hardship.

Depending on where you are from, the waiver approval can take a long time. You will get better results if you are with a US citizen than with an LPR, but whether you are a fiance or spouse does not make any difference. The typical waiting period for a US citizen waiver is a year. However, if you're from Mexico, you're lucky! The consular office in Ciudad de Juarez, Mexico (across the border from El Paso) has a pilot program. This speeds up the process for waivers. If you go through the pilot program, then you can schedule an appointment to file your waiver through a system called Infopass, and can schedule an appointment for two days or more after your first interview. At this appointment, you will submit your waiver packet for review ($545). If your waiver is clearly approvable, then you get your visa that same day. If it's not, then you have to get back in line and wait for approval, which will take a year or so. If it's not clearly approvable, it's a good idea to send more evidence.

If you're not from Mexico, then at your first interview you will be told when and where to file for your waiver, and you will be approved and denied within two months to a year and half, depending on the backlog in the country you're from.

Once you have your visa, you're done if you filed the I-130. If you filed the I-129, then once you come to the US you have three months to get married and file for adjustment of status. If you filed both the I-130 and the I-129, then you just adjust your status right away. You can't work legally until you have adjusted your status. Okay, actually, you're not done yet. Once you are in the country and married, you will be on a conditional visa until you have been married for two years. When your two year anniversary is coming up, you will need to file an I-751 to change that to a permanent green card.

Scenario 2: I entered legally, but overstayed.

Entering legally means you came here on a valid visa. Even if you came here with a tourist visa, you are considered to have entered legally. If you came here fraudulently, such as if the tourist visa you came in on was under someone else's name, then you are still considered an overstay. Lucky for you, your process will probably be easier than that of someone who entered without inspection, and you will be able to adjust your status in the US.

Now, if you entered legally, then this process will be fairly easily. There is one exception for if you entered on a J1 student visa, in which case you are subject to a requirement to return to your home country for two years. However, you can waive this with an I-612 waiver, which is like the I-601 waiver above, so scroll up if this applies to you, because I'm not going to repeat myself. Other things that might make you inadmissible would be if you are HIV positive, in which case you must file an I-601 waiver. Like with an entry without inspection, your spouse/fiance must make 125% of the poverty level to sponsor you.

First you need to file your I-130 petition and your I-485. In the I-130 you need to prove that your spouse/fiance is a US citizen or legal permanent resident, and in the I -485 you need to prove that you entered legally and are eligible to adjust your status. You can also an I-765 so that while you're waiting on your Green Card, you can work legally and get an SSN/license/etc.

Okay, and I'm getting bored of this. I'll come back to adjustment of status later. In the meantime, check out the links under roll call.

Scenario 3: I am undocumented and do not have a citizen/LPR spouse/fiance, but I would like to marry someone just to get a green card.

I've seen a couple of comments on here to that effect, and while I understand the desperation of the situation, you have to understand the consequences before you make any rash decisions. If you are found to have committed marriage fraud, then that could make it to where you would never be able to adjust your status through marriage, even if you enter into a bona fide marriage. There are several ways for USCIS to determine if your marriage is real or not.

C. 245(i)

On December 15, 2000, Congress extended the provision 245(i), which allowed those unlawfully present in the US to adjust their status in the country, until April 30, 2001. This means that if a petition (I-130, I-140, I-360) was filed for you before that date, then you are grandfathered in under the law and can gain lawful status if you pay a $1000 fine. In order to qualify, you have to have been present in the US on December 15, 2000.

I will continue on this later.

D. Violence Against Women Act

If you are the spouse or child or stepchild of US citizen or lawful permanent resident and have been a victim of domestic abuse at the hands of said citizen/LPR, then you might qualify for cancellation of removal under the VAWA. Since you guys are more likely to be the child in this situation, you would only qualify up until the age of 21, or, if the abuse is the reason for the delay, until the age of 25.

Requirements:

" You must be

* the spouse or child of a US citizen or a lawful permanent resident;
* the spouse or child of a US citizen or lawful permanent resident who lost his status within the past two years because of domestic violence;
* the former spouse of a US citizen or lawful permanent resident and the divorce took place in the past two years and was related to domestic violence;
* the spouse of a US citizen or lawful permanent resident who was a bigamist if you married the US citizen or lawful permanent resident in good faith and with an intent to legally marry;
* the spouse of a US citizen who died within the past two years;
* a non-abused parent of a child abused by a US citizen or lawful permanent resident spouse, even if the child and abuser are not related;
* abused "intended spouses" (fiance) of a US citizen or a lawful permanent resident; or
* an abused child of a US citizen or a lawful permanent resident.
* an abused parent who has been battered or subjected to extreme cruelty by your adult U.S. citizen son or daughter (816)"

It is not a requirement that the abuse happened in the US. Your parent or, if you are the spouse, you, has to show that the marriage was bona fide and was not entered into for immigration benefits. You have to prove good moral character and cannot have committed immigration fraud or claimed to be a US citizen. You must have been in the US at least three years before you apply for cancellation of removal. You can prove that, if you had to leave the US, you (or your parent, if you are the child) and your child (or you) would suffer extreme hardship, such as

" * You need access to US courts to obtain criminal prosecutions against your abuser, child support or custody, or to enforce any protective orders;
* You need access to social, medical, mental health and other services for yourself or your child that are not reasonably accessible in your home country;
* The laws and customs of your home country would penalize or punish you or your children for being victims of abuse, leaving the relationship, seeking a divorce, or for any other actions you took in ending the abuse;
* You would not be protected from your abuser or his family and friends in your home country; and/or
* Any other justifications you may be able to show extreme hardship."

When you apply for cancellation of removal under the VAWA, you must provide the following:

" * Cover letter - this is the "roadmap" for the CIS examiner
* Index
* G-28 Notice of Entry of Appearance (if represented by an attorney or advocate)
* Form EOIR-40 Application for Suspension of
* Deportation with $100 fee
* Form EOIR-42B Application for Cancellation with $100 fee
* Form G-325A (biographic information) with photograph and fingerprints
* Self-petitioner's detailed declaration
* Evidence of self-petitioner's identity
* Evidence of qualifying relationship to US citizen or lawful permanent resident
* Evidence of abuser's status as a US citizen or lawful permanent resident
* Evidence of good faith marriage
* Evidence of battery or extreme cruelty (self-petitioner's declaration can be enough)
* Evidence of current residence
* Evidence of good moral character (you can show this by an affidavit or a background check or report issued by a law enforcement authority)
* Evidence of extreme hardship"

(yes, I am getting lazy. shut up)

E. U Visa

U Visa is a baby visa, and came into effect a little over a week ago. In order to qualify for the U visa, you have to have been a victim of a crime in the US or a crime outside the US that violated US law, and you have to be able and willing to provide US officials with information regarding this crime. If you get a U Visa, you can apply for LPR status after three years, and you are authorized to remain in the US for four years, although extensions are possible.

There is a 10,000 limit on U visa beneficiaries each year (not including spouse/child/etc of benificiary), but if you apply you will be put on a wait list and receive a stay of removal. Here are some of the crimes which qualify you for U visa status:

"rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes."

Your U visa application must contain the following:

"1 - Form I -918, Form I-918 Supplement B,” Nonimmigrant Status Certification.” A form that petitioners must obtain from a certifying official of a certifying agency.

2- Any additional evidence the petitioner wants the USCIS to consider establishing further that:

* The petitioner is a victim of one of the qualifying crimes (see above). Example of evidence:
o Trial transcripts,
o court documents,
o news articles,
o police reports,
o orders of protection and,
o affidavits of other witness such as medical personnel
* The petitioner has suffered substantial physical or mental abuse as a result of having been a victim of the crime
o Report or affidavits from police, judges, other court officials, medical personnel, school officials, clergy, social workers, etc,
o Copy of protection orders or any other legal documents or signed testimonies from witnesses
* The petitioner possess information of the crime of which he or she was a victim
o Reports and affidavits from police, judges, and other court officials
* The petitioner has been, is being or is likely to be helpful to a certifying agency:
o Trial transcripts
o Court documents
o police reports
o News articles
o copies of reimbursements forms from travel to and from court
o Affidavits of other witnesses or officials

* The criminal activity violated US law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States
o a copy of statutory provisions showing the elements of the offense or factual information about the crime.
o A copy of statutory provisions providing for the extraterritorial jurisdiction and showing that the criminal activity violated federal law.

3. A Statement by the petitioner describing the facts of the victimization
in support of Form I -918. This rule requires the petitioner to submit a separate statement describing the facts with his or her own words. This statement should include the following information:

*
the nature of the criminal activity
*
when the criminal activity occurred
*
who was responsible
*
the events surrounding the criminal activity
*
how the criminal activity came to be investigated
*
what substantial physical and mental abuse was suffered as a result of the crime


4. If the petitioner is inadmissible, file Form I-192 “Application for Advance Permission to Enter as Nonimmigrant”

5. Biometrics (finger prints) of the U visa petitioners.

6. Form I-918, supplement A “petition for qualifying family members of U-1 recipient” for each qualifying family member.

7. Principal applicants do not need to file Form I-765 to receive an employment authorization document (they get it automatically). However, derivative family members must file Form I-765 to receive employment authorization.

8. Form I-193 for those who do not have a passport and are unable to obtain one."

VI. Parent petition.

TBA

VII. Sibling petition.

TBA

II. Immigration.

I see a lot of comments on here from people who are considering moving to another country if Dream does not pass next time around. There have been some concerns expressed about what the requirements are, immigration wise, for other countries and whether or not they take into account your unlawful presence period in the US. Here's a break down of a few different countries that dreamers have expressed interest in.

A. Canada

In order to immigrate lawfully to Canada, you must qualify under their points system. If you intend to immigrate as a skilled or professional worker, then you must have 67 points. You get up to 25 points for education, up to 24 points for language skills, 10 points for age, 10 points for adaptability, 10 points for arranged employment, and 21 points for experience.

Let's assume that the average dreamer is 24 years old, holds a bachelor's degree, is fluent in English as a second language, and has not been to Canada and thus would not be considered adaptable. The problem that will be most difficult for dreamers to overcome is the requirement of experience which, being unable to work legally in the US, most of you do not have. A lack of experience means automatic denial in most cases.

The above dreamer, assuming s/he has one year of experience, would get 20 education points, 8 language points, 15 experience points, 10 age points, and 0 adaptability points. If you can get a job offer, you can add 10 points to that, bringing you to a total of 63 points--just short.

You could also qualify as an immigrant who will settle in Quebec, in which case you only need 60 points but with different criteria. Using the example unmarried dreamer from above, you would receive 20 education points, maybe 2 experience points (6-11 months of experience or automatic refusal), 18 age points, 6 language points, 1 financial point, and 5 adaptability points, for 54 total, again falling short.

If you have family in Canada, they can sponsor you.

Some of you have experience in your fields, and in this case, Canada is for you a possibility. However, because of the automatic refusal for lack of xperience, I don't see it as being an option for many.

B. U.K.

TBA--too much info, see roll call.

C. Australia

TBA--too much info, see roll call.

III. Roll Call.

These are sites from which I gathered my information.

Immigrate2US-- Great site for those looking to file for adjustment of status through marriage.
Visa Central -- website of immigration attorney Laurel Scott, which provide info on getting legal and lots of info on hardship waivers
Family Based Immigration -- Adjustment of Status FAQ
USCIS -- info on waivers, ineligibilities, the Immgration and Nationality Act, etc., etc., etc.
Womens Law -- information on VAWA and U/T visas.
Shusterman -- FAQ on 245(i)
Canada Visa -- info on immigrating to Canada.
Work Permit -- info on immigrating to the UK.
Visas and immigration -- info on immigrating to Australia.

Anyway, I'll add more on the empty/incomplete sections later on. Hope it helps. Open for suggestions.

OMG, this is excellent! I'm sooo sticky-ing this!


Thanks for the great work!

pingpong, could you switch the title to "The Fix My Individual Immigration Status Thread?"

Posted by Ianus

Posted by me:

This is good source

Don't forget the Philippines.

That's great Pingpong Abyss! You're awesome!

This is probably really obvious and really stupid of me to ask....here goes:

Does this suggest that a minor (18 + 179 days), can technically leave the country, and then attempt to reapply to enter the country, without being subject to the 3 year ban?

fuck answering^....I figured it out. I'm so stupid.


SO F*CKING STUPID OF ME!!!


F*CK!