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FREQUENTLY ASKED QUESTIONS
Q. I entered the U.S. legally
with a visa and overstayed. If I marry my U.S. citizen boyfriend/ girlfriend,
will I have to return to my country to get my green card?
A. Probably not. Unless you entered on a restrictive C, D or J visa, you should be
able to file for "Adjustment of Status" and have your green card
processed in the U.S.
Q. I entered without inspection in
1996. I am pregnant and my boyfriend is ready to marry me and sponsor me. Can I
adjust status?
A. Probably not. If an approvable
petition was filed for you prior to May 1, 2001, however, you can adjust status. Your spouse
may file an immigrant visa petition for you. The approved petition will be sent
to a consulate (usually in your country) which will schedule you for an
interview. Because you resided at least 180 days unlawfully in the U.S. you
will be banned from returning for three years. If unlawful residence was at
least one year you will be banned for 10 years. In either case, you would be
permitted to allege extreme hardship to a U.S. resident or citizen's spouse,
child or parent and ask for a waiver.
Q. I entered the U.S. without
inspection on February 15, 2001. My U.S. citizen sibling immediately filed a
petition for me. Can I adjust status?
A. Probably, but you'll have to wait
for your priority date. Currently brothers and sisters of U.S. citizens must
wait for more than ten years. If you leave the U.S. before then, you will be
subject to the 3 or 10 year bans. If you fall into ICE's hands before you can
file for adjustment, you will be subject to removal.
Q. My visa expired 3 months ago and I
just married a lawful permanent resident. If he files a petition for me, will I
be allowed to file for Adjustment of Status?
A. No. If your spouse is not a U.S. citizen,
you cannot file for adjustment until he naturalizes.
Q. My labor certification application
was filed on April 30, 2001
and my lawyer says that it will be almost two years before I become adjustment
eligible. Will I be allowed to stay in the U.S. if I am caught by immigration?
A. Not if you are caught by ICE. An
Immigration Judge might (or might not) cut you a break and let you wait for
your priority date.
Q. I am the parent of a U.S. citizen
who is under 21. Can he petition for me? What other rights does this give me?
A. (1) He cannot petition for you
before his 21st Birthday. (2) The parent of a U.S. citizen may be eligible of
certain waivers and cancellation of removal that she would not otherwise be
eligible for.
Q. My U.S. citizen daughter is 21. Can
I adjust status?
A. You can probably adjust status as
an immediate relative of a U.S. citizen if you were inspected and admitted to
the U.S. or if an approvable petition or Labor Certification application was
filed for you before May 1, 2001.
Q. I heard that I can get a green card
automatically if I have been in the U.S. for over 10 years. Is this true?
A. Not really. You are talking about
cancellation of removal. This is available to an alien who has been physically
present in the U.S. for ten years prior to the commencement of the removal
proceedings; has good moral character during such period; has NEVER been
convicted of certain offenses; and establishes that the removal of the alien
would result in "exceptional and extremely unusual hardship" TO THE
ALIEN'S SPOUSE, PARENT OR CHILD WHO IS A CITIZEN OF THE U.S. OR WHO IS AN ALIEN
LAWFULLY ADMITTED FOR PERMANENT RESIDENCE. This is a high standard of proof.
Even a liberal, humane immigration judge may decide that you have not met your
burden of proof and order your removal.
Q. If I decide to leave the U.S. in
order to avoid the 3/10 year penalties, can I still continue my case, or start
one if I haven't started one yet?
A. Yes. However, the basis for your
case must continue. For example, if your employer applied for you, your
employer must not go out of business and must still expect that you will go and
work for them. If your spouse is applying for you, you must still remain
married and your spouse must still want to apply for you. The relative applying
for you must still wish to apply for you. If it is a family case, the relative
applying for you must remain alive (except in very unusual circumstances).
Q. I am afraid that I will be
persecuted if I return to my country. Can I apply for political asylum and, if
I do, can I stay here legally until they decide my case?
A. (1). Except where there are very
unusual circumstances, your application for asylum must be filed within a year
of your admission to the U.S. (2). You may stay here legally while your
application is pending. The time will not count against you unless they decide
your application is frivolous. It is unlikely that you will be granted
employment authorization.
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