Elawyers Elawyers
Virginia| Change
Asked in Denver, CO Jun. 09, 2016 ,  5 answers Visitors: 98
Does minor need to apply for 601 waiver when parent is adjusting status and applying for waiver?
Tag:  Show more
Data From  AVVO

5 Answers

Anonymous
Reply

Posted on / Jun. 14, 2016 14:54:49

If your husband and stepson entered the country without going through an inspection process at the border, then they will be unable to apply for their green cards from inside the U.S. (a process called adjustment of status) unless certain, limited exceptions apply (more about those exceptions later).

Without the ability to adjust status from inside the U.S., they will need to depart the U.S. and apply for immigrant visa from abroad (referred to as consular processing).

Unlawful presence becomes an issue if your husband and son depart the U.S. This is because our immigration laws have a provision that encourages people not to stay too long in the U.S. without authorization.

The first such law is called the 3-year-bar. It works like this: if a person has been unlawfully present in the U.S. for more than 180 days but less than a year, and then departs, he can't return for 3 years (unless he gets a waiver). You can find this law at section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA). Understand that the term "unlawful presence" is not exactly the same thing as being here without authorization. It is a term of art with a very specific definition. As a matter of law, a person does not acquire unlawful presence, for the purpose of the 3 year bar, when he is under 18. This provision is found at section 212(a)(9)(B)(iii)(I) of the INA.

The second relevant law is very similar. It is called the 10 year bar and is found at INA section 212(a)(9)(B)(i)(II). Under that provision, if a person is unlawfully present in the U.S. for 1 year or more, and then departs, he can't return for 10 years (unless he receives a waiver). As with the 3 year bar, a person does not accumulate any unlawful presence, for the purpose of the 10 year bar, while he is under 18.

There is third provision that deals with unlawful presence. It is often referred to as the permanent bar and is found at INA 212(a)(9)(C)(i)(I). Under that law, if a person has more than 1 year of unlawful presence, then departs, and then returns (or attempts to return) without inspection, he is barred from being admitted to the U.S. for 10 years--but no waiver is available (except for certain domestic violence victims). Unlike the 3 and 10 year bars, a person can accumulate unlawful presence at any age.

Assuming that your husband and son only are not eligible to adjust status in the U.S, and assuming also that they will not be subject to the permanent bar, then they will need to go through consular processing. Depending on how much unlawful presence they have accumulated prior to their departure, they may be subject to the 3 or 10 year bars.

You would start the process by filing separate I-130 petitions for them, proving the bona fide nature of your relationship. The filing of the I-130, and even its approval, will not stop the accumulation of unlawful presence.

It is entirely possible that your stepson's I-130 would be approved prior to him turning 18 1/2. If so, he would then immediately depart the U.S. and apply for an immigrant visa so he could return to the U.S. as a green card holder.

Your husband's case would be more complicated. Ideally, he would qualify for the provisional stateside waiver, or I-601A. His eligibility would depend on whether or not he triggered other bars to admission in addition to the unlawful presence bar. For example, he might need a separate waiver for instances of fraud or a criminal record. If so, he could only apply for a waiver after he had left the U.S.

If your husband qualifies for the I-601A, then you would file that with immigration, attempting to prove that his departure from the U.S. would cause you an extreme level of hardship. If the provisional waiver was approved, he would then apply for an immigrant visa from abroad and return shortly afterwards as a green card holder.

Anonymous
Reply

Posted on / Jun. 10, 2016 23:53:30

Your husband and minor (step)son each have their own immigration cases. In the immediate relatives category, the U.S. citizen must file a separate I-130 immigrant petition for each beneficiary, i.e. one I-130 for the spouse and another I-130 for the child. Unless the person qualifies for 245(i) benefits, lawful admission to the U.S. is required to be eligible for I-485 adjustment of status (AOS). So if your husband and his minor son entered the U.S. unlawfully, without inspection, they may not adjust status under normal circumstances. Instead, they must depart the U.S. to apply for immigrant visas at the US Consulate.

Departure from the U.S. triggers the 3/10 year unlawful presence bar. Unlawful presence accrued after April 1, 1997, and after the person turns age 18, counts toward the 3/10 year bar to re-entry. If the unlawful presence is more than 180 days to less than 1 year in a single period of stay, the bar to re-entry is 3 years. If the unlawful presence is 1 year or more in different/aggregate periods of stay, the bar to re-entry is 10 years.

Section 212(a)(9)(B)(iii) of the Immigration & Nationality Act excludes a minor under age 18 from accruing unlawful presence. Upon turning 18, he begins to accrue unlawful presence toward the 3/10 year bar (unless he has DACA, TPS, or some other relief that gives him authorized stay.) If your son accumulates unlawful presence of more than 180 days in the U.S., after he turns 18, he will need a waiver to get an immigrant visa before the 3/10 year bar expires.

The spouse and minor son of a U.S. citizen may file a Form I-601A, Application for Provisional Unlawful Presence Waiver, within the U.S. after USCIS approves the I-130 petition. An I-601A applicant may wait for the decision before departing the U.S. for consular processing. The I-601A may be filed when the only ground of inadmissibility is unlawful presence.

If there are additional grounds of inadmissibility, such as criminal convictions or immigration fraud, the I-601A cannot be used. Instead, the regular Form I-601, Application for Waiver of Grounds of Inadmissibility, must be filed after the person departs the U.S. and attends the immigrant visa interview. Unlike the I-601A, the I-601 may be used to overcome multiple grounds of inadmissibility that can be waived, including some criminal grounds and immigration fraud (except false claims to US citizenship to gain immigration benefits).

In consular processing, the visa applicant pays the DS-260, Online Immigrant Visa application fee (currently $325), not the I-485, Adjustment of Status application fee. There is also an I-864, Affidavit of Support fee (currently $120). The fees will not be refunded if the I-601A or I-601 waiver application is denied. To learn more about the Immigrant Visa Process, go to the DOS website at https://travel.state.gov/content/visas/en/immigrate/immigrant-process/approved/contact.html

Obtaining permanent residence through consular processing, especially when a waiver is required, involves many obstacles and requires heavy documentation. To get an I-601 or I-601A waiver, the applicant must prove the qualifying relative (e.g. US citizen spouse or parent) will suffer "extreme hardship" if he is not admitted to the U.S. The hardships must be above and beyond the normal hardships that come with a family separation or a relocation of the qualifying relative to be with the applicant. The minor son also needs to get the immigrant visa before he turns 21; otherwise, he "ages out" and can no longer receive the visa (unless he qualifies for Child Status Protection Act/CSPA benefits). Be sure to consult an experienced immigration attorney on the I-130 + immigrant visa + waiver process.

Anonymous
Reply

Posted on / Jun. 09, 2016 12:43:38

The previous two answers covered the issues of unlawful presence and 601 waiver. Although you seem to have a very good understanding of these two processes, the issue of adjustment of status demonstrates the complexity of immigration law. Many people are satisfied with immigration attorneys' work due to the high cost of filing fees and lengthy processing times. You might find it worth your time and money to pay an immigration attorney to handle these issues for you. Good luck!

Anonymous
Reply

Posted on / Jun. 09, 2016 05:28:36

1. The minor will not need a waiver but would need to leave the US to get an immigrant visa via consular processing.
2. You are referencing a 601A waiver. First an I130 would need to be filed and approved. Then the waiver can be filed and you would await a decision. If approved, then your husband would get his immigrant visa via consular processing by leaving the US for a short period (presuming there are no other grounds of inadmissibility.) Please consult with a qualified immigration attorney who handles 601A waivers and understands the process.

Anonymous
Reply

Posted on / Jun. 09, 2016 05:23:59

1. Although no waiver is needed (you appear to be correct in your understanding of unlawful presence) the boy must leave the US to get an immigrant visa.

2. I think you're talking about the I-601A ... not the I-601. Yes, you must wait for the decison.

BUT .. if the I-601A is approved it still IS NOT POSSIBLE to adjust with an I-485.

Don't waste money on the I-485

Do spend money on a private consultation with an attorney .. many of us use Skype.

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer