Immigration attorney Aggie R. Hoffman answers questions about immigrating to the United States from those submitted by the readers of HispanicLA.
I am an American citizen. I have been living for the last three years with my boyfriend, a Salvadorean. He came here illegally and was deported in 1993. Three years ago I was diagnosed with Parkinson’s Disease. I receive a check from Social Security and I am losing my condo. Is there a way for him to obtain legal status after we get married? I really need him. He takes care of me.
Your question and case are most compelling and at the same time raise complex issues. Although the process is long and difficult, resolution may be possible. Your query, however, is missing important information. Below are the laws your novio will likely face.
If you marry, you will have to establish that your marriage is bona fide–that it is not solely for immigration purposes. You do so by filing a visa petition with the Citizenship & Immigration Services (CIS). This is the first step to legalize his status. In support of the petition, you must submit evidence of documents and activities that married people share, such as joint lease or property ownership; joint insurance (auto, health, life); joint bank accounts and bills, as well as photos of the wedding, holidays, with family and friends. The fact that you have lived together for three years is also significant.
The second step is filing the application to adjust status. However, it appears that your novio entered the U.S. without inspection (illegally). As a result, he is not eligible to finish his immigration in the U.S. This is true even if he marries you, a U.S. citizen; this has been the law since the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). As a consequence, he will not be eligible to receive employment authorization while his immigration process is pending. He will have legal status only at the end of the case, after he is issued his immigrant visa at the U.S. Consulate in his home country.
The obstacles facing your noivo are the various penalties imposed for immigration violations. The first one is unlawful presence of more than one year. This makes him inadmissible and ineligible for residence for 10 years. However, he would be eligible for likely qualify for a waiver based on your extreme hardship. You also say that he was deported, but many people use that term incorrectly, for example, when one is stopped and returned at the border. On the other hand, if he was in immigration court before a judge, you may be correct and he was really deported. If so, it is also important to know why he was deported. Did he commit a crime? If so, what crime? If the crime was not a felony, not a crime of violence, not a crime of moral turpitude, he -again- may be eligible for a waiver based on extreme hardship to you.
If your novio has indeed been deported, he is subject to reinstatement of deportation. This means that if he is found, he can be deported again without a hearing before a judge. You must also be aware that unlawful entry after deportation is a felony. Such a violator may be arrested and prosecuted in federal court and sentenced to prison. However, in reality, the government does not take this action against every such violator.
If your novio does not have a serious criminal record, his removal from the U.S. based on reinstatement of his deportation may be suspended through discretionary deferred action of the CIS. This means that no action would be taken against him while his immigration is being processed. In the end, he would have legal status through your marriage and his immigration violations forgiven due to extreme hardship to you.
CAVEAT: The above is not a complete legal analysis, does not constitute legal advice, nor should it be construed as such. For a case specific analysis, consult an experienced immigration attorney for a private and extensive review of the facts of your case.
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