Question:
“About five years ago, I met the love of my life. He is from Argentina and he entered the country in 1994 without immigration papers. He was deported a year later. We’re not married but we have a 3 year-old daughter. I’m fighting a serious medical illness right now and I’m afraid what might happen to our child if he is deported. If we get married, will he be able to become a permanent resident? Or is there no hope?.”
(Submitted by Carmen E., Yucaipa, CA)
Answer:
Based on what you shared, there is no clear answer. I perceive three major problem areas with seeking permanent residence benefits.
First, of course, you must get married. But you should not get married just to help him get immigration papers. Your marriage must be “bona fide” in the eyes of immigration officials.
Your marriage, in short, must be a real marriage based on love, not convenience.
If they government suspects your marriage may not be authentic, they may schedule you for a Stokes interview, where the two of you are separated and answers on your own.
You have a daughter together and that’s pretty good evidence of a true relationship. Still, you’ll likely need more proof.
During the past five years, have you lived together? Do you have any joint accounts, like bank accounts, insurance, utility bills, rental or mortage agreements? Have you spent time together at family functions, like birthday parties and community events?
The second hurdle is filing the green card application. In formal language, this is called the adjustment of status application. Here is where your future husband’s case gets more difficult.
Since he illegally entered the U.S. without permission and has lived here for more than a year, his permanent residence interview will take place at the U.S. Consulate in his home country.
Yet, he may be deemed ineligible for 10 years to return to the U.S. unless he can qualify for a special permission – called an I-601 waiver – which allows him to come back sooner.
The rules for processing these waivers have recently changed. Now you can file them while he is still in the United States. Winning them is not easy. To succeed, he will need to demonstrate you and your child will suffer an extreme hardship if he is not allowed to return to the U.S. sooner.
Then, there is a possible bigger issue due to his deportation.
Was your boy friend really deported? Or was he picked-up and allowed to depart voluntarily?
Did he get sent to immigration court? If he went to immigration court, then an immigration judge issued an order. Was it an order of deportation? If so, why did the judge deport him? Was it because he was here without permission? Or for some other reason, like a criminal conviction?
If he was deported for a conviction, what type of crime? For certain crimes, the government can reinstate the prior deportation order. This leads to automatic deportation if they find him in the country.
On the other hand, if he has not committed a serious criminal conviction, immigration officials may decide to not proceed with reinstating the old deportation order while your petition to immigrate him is being decided.
If you get married, don’t take these issues lightly. Before filing an immigrant petition for your boyfriend, you should seek the help of an immigration lawyer.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Green Cards And Permanent Residence Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
