Help! Should I apply for I-485?

[johnc65]

My wife filed form I-130 on my behalf in 2002. The I-130 was approved. I entered the US illegally unfortunately (huge mistake), so I was very surprised that the I-130 was approved. I still live in the US with my wife, and we have two US citizen children.

My question: I want to file for the I-485 but don't know if it will be approved based on my illegal entry. However, the I-130 is already approved, so I don't know. The I-130 had my US address on it.

Thanks!

[TheRealCanadian]

Originally Posted by johnc65

I entered the US illegally unfortunately (huge mistake), so I was very surprised that the I-130 was approved.

If you entered illegally, then you are unable to adjust status but that is not an impediment to having your I-130 approved since you are eligible for an immigrant visa (after you have served out the 10-year re-entry bar.)

[johnc65]

Originally Posted by TheRealCanadian

If you entered illegally, then you are unable to adjust status but that is not an impediment to having your I-130 approved since you are eligible for an immigrant visa (after you have served out the 10-year re-entry bar.)

But I'm confused, because the I-130 itself mentioned that I entered illegally. Shouldn't it have been denied on those grounds? I thought once the I-130 is approved, I would be eligible to adjust status even despite my illegal entry.

[TheRealCanadian]

Originally Posted by johnc65

Shouldn't it have been denied on those grounds?

No. Illegal entry isn't grounds for denial of an I-130.

[johnc65]

Originally Posted by TheRealCanadian

No. Illegal entry isn't grounds for denial of an I-130.

OK, thank you. If I file the I-485 and it gets denied, will I be put into removal proceedings?

[PraetorianXI]

the I-485 will be denied. No question about it. And yes, you will be put in removal proceedings. Get a lawyer and maybe file for a waiver.

[johnc65]

Originally Posted by PraetorianXI

the I-485 will be denied. No question about it. And yes, you will be put in removal proceedings. Get a lawyer and maybe file for a waiver.

I can file the waiver for hardship based on my 2 US citizen children, but only after I get placed into removal proceedings, correct? Thanks for your help, I am just getting really worried now, though I know it's my own fault.

[mona_lisa]

oh wow... praetorian they won't forgive him if he's married to a US citizen?

[TheRealCanadian]

Originally Posted by mona_lisa

oh wow... praetorian they won't forgive him if he's married to a US citizen?

An overstay or violation of status can be forgiven, but not the illegal entry.

[johnc65]

Originally Posted by TheRealCanadian

If you entered illegally, then you are unable to adjust status but that is not an impediment to having your I-130 approved since you are eligible for an immigrant visa (after you have served out the 10-year re-entry bar.)

How do I know whether I have to serve the 10-year reentry bar? If the US has no record of me arriving or departing, how will they know whether I am barred or not? Sorry if this is a dumb question.

[austriacus]

I believe you'll be the one to tell them exactly when you entered and exited when you fill out your visa forms.

Definition of unlawful presence in the Immigration & Nationality Act INA 212(a)(9)(B)(II):

Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

You'll probably be asked on various forms if you've ever been in the US, if you've been lawfully admitted, when you entered, when you last were in the US, etc. and your unlawful presence subjecting you to the 10 year bar after one year began on the day when you entered the US illegally.

There's a family unit protection clause reducing the unlawful presence, maybe you can look into it, I don't know anything about it.

[PraetorianXI]

He already filed I-130, so he already told USCIS when he entered illegally.

[johnc65]

I really appreciate everyone's replies.

Now I am wondering what the best move to make is. My ultimate goal is to have the opportunity to adjust status at some point. If I applied for the GC anyway and get denied, I know I will be put into removal proceedings. At that point, I would try to file for a waiver based on extreme hardship to my US citizen wife and children. These are my questions:

1) Am I eligible for the waiver? I've been in the US for 7 years, my children are 2 and 3 years old, and I own a business and pay taxes every year. My wife and children are all US citizens.

2) If the waiver is sucessful, will I be able to adjust status?

3) Is there a way to apply for the waiver (and to be put into removal proceedings) without filing the GC application (and spending over $1000 in doing so)?

Thanks again for any help you can offer.

[TheRealCanadian]

Originally Posted by johnc65

Is there a way to apply for the waiver (and to be put into removal proceedings) without filing the GC application (and spending over $1000 in doing so)?

I think you're at the point where you would be very well served by a 1/2 to 1 hour consultation with a reputable immigration attorney for $100 or so. Actually, you probably want two.

I would not file anything further until you and your attorney have a game plan.

[cherr1980]

Originally Posted by mona_lisa

oh wow... praetorian they won't forgive him if he's married to a US citizen?

The law is pretty clear...is not about forgiven is about who is eligible for adjustment of status...I-130 is totally different story, only establish the relationship between the petitioner and the alien, and that petition is his wife's petition not his. The I-485, adjustment of status, is HIS application to be granted residency based on an approved I-130, so he is the one who must be eligible in other grounds to do so, one of the grounds is that he must show that he was inspected, and he is not.

Illegal entry (no inspection), is a total no no for adjument of status, regardless to whom you are marry or how many kids you have in the US, that's not new.

He needs a lawyer.

[johnc65]

I agree with all of this, and thank you.

I guess my question at this point is whether I have ANY chance of adjusting status based on a hardship waiver in the removal proceedings or something. I am concerned because I've only been in the US for 7 years, I'm not sure if that's long enough to get that waiver considering my illegal entry. Also, whether I HAVE to file the I-485 to get put into removal proceedings and apply for the waiver. Something has to happen, either I'm deported or get a green card, I just can't stay here with no status anymore.

Originally Posted by cherr1980

The law is pretty clear...is not about forgiven is about who is eligible for adjustment of status...I-130 is totally different story, only establish the relationship between the petitioner and the alien, and that petition is his wife's petition not his. The I-485, adjustment of status, is HIS application to be granted residency based on an approved I-130, so he is the one who must be eligible in other grounds to do so, one of the grounds is that he must show that he was inspected, and he is not.

Illegal entry (no inspection), is a total no no for adjument of status, regardless to whom you are marry or how many kids you have in the US, that's not new.

[TheRealCanadian]

Originally Posted by johnc65

I guess my question at this point is whether I have ANY chance of adjusting status based on a hardship waiver in the removal proceedings or something. I am concerned because I've only been in the US for 7 years, I'm not sure if that's long enough to get that waiver considering my illegal entry. Also, whether I HAVE to file the I-485 to get put into removal proceedings and apply for the waiver.

What you're asking are questions that we don't often deal with, and the ramifications for making the wrong decision can be very, very significant. I don't have an awful lot of patience for attorneys who are glorified form fillers and charge dearly for this dubious service, but your situation is one of those where a good attorney is well worth the money.

You need professional assistance, not just an Internet message board.