Asylum seeker marrying a Green card Holder (Third Country Processing)

[gaby123]

Hi everyone, I was wondering if anybody went through the same situation that I am in right now.
I applied for asylum on March 2017, I have not been interviewed or anything so far. So, my fiancé just got his green card and I was wondering if it is possible for him to adjust my status. And I know I have to leave the country for consular processing and being that I am an asylum seeker I cannot go back to my country, so I was thinking maybe third country consular processing.(Does anybody have experience with this kind of processing). And should I apply for advance parole before I leave for the third country?
Thank you in advance

 

[Fin]

I might be wrong but can’t he just file a AOS for you here? The F2A category is current so he can file a I-130 and I-485 for you but you need to be married first. I think the only requirement is that your last entry should be proper (not EWI). it shouldn’t matter if you are out of status. People do this all the time in other family based categories so I’m assuming it should be no different for F2A

 

[newacct]

I might be wrong but can’t he just file a AOS for you here? The F2A category is current so he can file a I-130 and I-485 for you but you need to be married first. I think the only requirement is that your last entry should be proper (not EWI). it shouldn’t matter if you are out of status. People do this all the time in other family based categories so I’m assuming it should be no different for F2A

For non-Immediate-Relative categories, they also need to be in status, and to have never been out of status, in order to be eligible for AOS. The OP likely hasn't maintained status until now (pending asylum is not status), and thus is not eligible for AOS.

 

[zman44]

Your fiancé cannot sponsor you for a green card. You HAVE to be married. After you get married, yes, he can sponsor you. There's two possible scenarios here.
1. If you entered the US with inspection (visa). You can file for AOS here without having to leave the country. Even if you have accumulated unlawful presence, there's a waiver for that.
2. If you entered the US without inspection (illegally). You have to leave, there's no waiver for this as far as I know. The problem here is that you can't go back to your own country. And no 3rd country US embassy is going to process anything for you unless you have legal status in that country. So let's say you decide to go to Mexico. The US embassy down there is not going to be able to process any US-related applications for you unless you have Mexican permanent residence, work visa, long-stay visa or asylum status. Tourist visas or short-term visas do not count. In other words, you must be a resident of that country for the US embassy to take any applications from you. Because of that quandary, there MIGHT be a waiver for you to be able to stay in the US without having to leave the country since you can't go back to your own. I would definitely consult with an attorney if this is the case.

 

[Fin]

For non-Immediate-Relative categories, they also need to be in status, and to have never been out of status, in order to be eligible for AOS. The OP likely hasn't maintained status until now (pending asylum is not status), and thus is not eligible for AOS.

Got it, I stand corrected. Then the option is to file a I-601 (unlawful presence waiver) as long as OP entered lawfully. I think this case would definitely need lawyer assistance. I would not leave the country for consular processing if any unlawful presence was accrued as there is a potential for a 3 or 10 year bar. Even if the waiver is approved, a possibility of a Stokes-type marriage interview is higher in such cases, so I recommend getting a lawyer.

 

[SusieQQQ]

Possibly worth mentioning I601s have had an average processing time of almost 10 months so far this fiscal year, likely to be longer now. @zman44 , how does the waiver work in this instance? I know that in some cases the process is i130 - interview - denied at interview but told can apply for waiver - apply for waiver - interview again. Would that be the case here (in which case it’s all going to be extremely long, probably measured in years rather than months) or can they file the waiver with the i485?

 

[zman44]

Possibly worth mentioning I601s have had an average processing time of almost 10 months so far this fiscal year, likely to be longer now. @zman44 , how does the waiver work in this instance? I know that in some cases the process is i130 - interview - denied at interview but told can apply for waiver - apply for waiver - interview again. Would that be the case here (in which case it’s all going to be extremely long, probably measured in years rather than months) or can they file the waiver with the i485?

There's no right or wrong way to do it. In reality, sometimes you don't even need to submit a waiver if it's ONLY for unlawful presence. The I-485 adjudication manual says that when an applicant fails to submit a waiver, but it's obvious to the IO that the they qualify for one, the officer can simply fill it out and approve it for them, lol. In my opinion though, it's best to submit it with the initial I-485 package, yes you can do it.

1. Submit I-601 with initial I-485 + I-130 package. (In my opinion this is the best and fastest way to do it)
2. USCIS will send you an RFE asking for one. (Just delays your case for a bit).
3. You can bring the I-601 to the interview. The Interview Officer may or may not ask for one. (If you do need one and don't have it at the interview, this can significantly delay your case until the Interviewing officer can review you case again once you have submitted the waiver form.)

 

[SusieQQQ]

the I-485 adjudication manual says that when an applicant fails to submit a waiver, but it's obvious to the IO that the they qualify for one, the officer can simply fill it out and approve it for them, lol. )

do you know of what those “obvious“ circumstances might be?
also wondering how much of a formality it is vs chance of getting rejected.

 

[zman44]

do you know of what those “obvious“ circumstances might be?
also wondering how much of a formality it is vs chance of getting rejected.

I feel like we're highjacking OP's thread and original question. It's all up to the discretion of the officer. It could be a very simple reason and the officer is in a bad mood and sends you an RFE anyway. And the manual just says "the favorable factors in the applicant's case [should] outweigh the unfavorable ones." Just like with anything else with USCIS, it's a crapshoot, lol.

https://www.uscis.gov/policy-manual/volume-9

 

[Fin]

I feel like we're highjacking OP's thread and original question. It's all up to the discretion of the officer. It could be a very simple reason and the officer is in a bad mood and sends you an RFE anyway. And the manual just says "the favorable factors in the applicant's case [should] outweigh the unfavorable ones." Just like with anything else with USCIS, it's a crapshoot, lol.

https://www.uscis.gov/policy-manual/volume-9

I know for a I-602 waiver, the manual says that a well founded fear of persecution is a substantial humanitarian factor for relief. Since OP is an asylum applicant, I am sure such a case can be made for I-601 as well.

 

[SusieQQQ]

I feel like we're highjacking OP's thread and original question. It's all up to the discretion of the officer. It could be a very simple reason and the officer is in a bad mood and sends you an RFE anyway. And the manual just says "the favorable factors in the applicant's case [should] outweigh the unfavorable ones." Just like with anything else with USCIS, it's a crapshoot, lol.

https://www.uscis.gov/policy-manual/volume-9

the original question was asked in ignorance of the fact that you cannot process CP elsewhere without a legal long term presence in that country, so I personally feel it’s valid to help OP understand what her actual options are.

 

[newacct]

Your fiancé cannot sponsor you for a green card. You HAVE to be married. After you get married, yes, he can sponsor you. There's two possible scenarios here.
1. If you entered the US with inspection (visa). You can file for AOS here without having to leave the country. Even if you have accumulated unlawful presence, there's a waiver for that.

This is incorrect. After marriage, the OP would be the spouse of a permanent resident, in the F2A category. Someone in a non-Immediate-Relative category cannot do AOS if they are out of status or have ever been out of status. "Waiver" does not help -- waivers are for bans, and the OP doesn't have a ban if she hasn't left the US anyway. The problem is not a ban, but rather an ineligibility for AOS, and that ineligibility cannot be waived. CP is the only option if the OP is out of status and wants to immigrate through a permanent resident spouse (unless she waits it out until the spouse naturalizes, at which point she would be eligible for AOS if she entered legally, as she would be in the Immediate Relative category; but that would be at least 5 years from now as the fiance just got a green card).

If the OP does CP, we are not sure whether there is a ban, as one does not accrue unlawful presence while a bona fide asylum application is pending, if she did not work illegally. We don't know enough about whether unlawful presence was accrued prior to applying for asylum, whether the OP worked illegally, and whether her asylum application is bona fide, to determine whether she will trigger a ban upon leaving the US. If she would trigger a ban, she can file I-601A before leaving the US to apply for a provisional unlawful presence waiver, and know the result before she leaves the US for CP.

 

[zman44]

@newacct I think you're confusing or misunderstanding several things. If OP marries a GC holder, they would become an immediate relative. Immediate relatives include spouses, children, adopted children, and step-children. Non immediate relatives include parents, step-parents, unmarried siblings under 21, and unmarried half-siblings under 21. Citizens and GC holders can sponsor immediate relatives under the same rules. GC holders CANNOT sponsor non-immediate relatives.

I have first-hand experience with this. I have a relative who came to the US on a tourist visa. She overstayed for many years. Eventually she married a Permanent Resident, and she was able to adjust status without having to leave the country. By contrast, I have a friend who came to the US without inspection. He was here for many years before marrying a US citizen. When adjusting, he had to go back to his home country to apply for the waiver and avoid the 10-year ban. It took a little over a year, but he was eventually able to come back and get his green card. The main point here is not so much unlawful presence but how you first entered the US - with or without inspection (legally or illegally).

A waiver is not for a ban. A waiver is for inadmissibility grounds when adjusting to Permanent Resident status. If you click on the link I posted on my earlier post, you can verify this. A ban is something that gets triggered when you become inadmissible, you leave, and you don't qualify for one of the waivers or there is no waiver for your offense to be able to return.


@Fin also makes a good point that waivers are slightly different depending on HOW you're adjusting. All of this so far is only as it relates to marriage -based green cards, because OP is talking of going that route. And I do agree with you that we need more information from OP on how they entered the US and whether they have accrued any unlawful presence or not. IF they wish to disclose that information.

 

[SusieQQQ]

@newacct I think you're confusing or misunderstanding several things. If OP marries a GC holder, they would become an immediate relative. Immediate relatives include spouses, children, adopted children, and step-children. .

this is wrong. I don’t know the details of your relative’s case and how she managed to adjust, but immediate relative as defined in immigration law (that is, IR or CR cases) only applies to US citizens. Overstay and other violations are forgiven for IR cases, not for F2 cases, as OP would be. This is why OP would need a waiver (if it is available, I’m personally not clear on that). An immediate relative of a USC would not need a waiver just for overstay.

 

[Fin]

Im not sure if OP is reading this or not, but since I have a lot of time (stuck at home!!), here is what I gather from the feedback from other posters and my take:

A) If OP is EWI - only option is to pursue asylum
B) If OP entered lawfully and has not accrued any unlawful stay or is in legal status right now, then she can file AOS under F2A once she marries her fiance.
C) If OP entered lawfully and has accrued unlawful stay, then I think it is possible to for her to marry and file I-130, I-485 and I-601 waiver concurrently to waive the unlawful presence. Since she hasn't had her asylum interview yet, these two cases can continue on separate tracks.

Possible outcomes:
1. The F2A case gets granted and OP gets a GC. Then she can withdraw her asylum case.
2. The asylum gets granted first. Now she can wait to see how the F2A goes. If it gets granted, she will get a GC, else she will already be an asylee and file for an asylum based GC after 1 year
3. The asylum gets denied first and F2A gets granted. OP gets a GC.
4. Both asylum and F2A get denied. Now she will be referred to the immigration court and she can renew both her applications and the waiver request as well. An applicant can request for multiple reliefs from the IJ as per the regulations.

 

[zman44]

this is wrong. I don’t know the details of your relative’s case and how she managed to adjust, but immediate relative as defined in immigration law (that is, IR or CR cases) only applies to US citizens. Overstay and other violations are forgiven for IR cases, not for F2 cases, as OP would be. This is why OP would need a waiver (if it is available, I’m personally not clear on that). An immediate relative of a USC would not need a waiver just for overstay.

Are we disputing the category on the green card or the fact that Green Card Holders can sponsor relatives?

I agree she would need a waiver either way.

 

[newacct]

@newacct I think you're confusing or misunderstanding several things. If OP marries a GC holder, they would become an immediate relative. Immediate relatives include spouses, children, adopted children, and step-children. Non immediate relatives include parents, step-parents, unmarried siblings under 21, and unmarried half-siblings under 21. Citizens and GC holders can sponsor immediate relatives under the same rules. GC holders CANNOT sponsor non-immediate relatives.

The Immediate Relative category specifically refers to the spouse, parent, or unmarried under-21 child of a US citizen. The spouse and unmarried under-21 child of a permanent resident is in the F2A category.

I have first-hand experience with this. I have a relative who came to the US on a tourist visa. She overstayed for many years. Eventually she married a Permanent Resident, and she was able to adjust status without having to leave the country.

This is not possible, unless her spouse became a citizen, or she was grandfathered under 245(i) (i.e. she was the beneficiary of a petition filed before 2001), or applied through VAWA or some other special circumstance like that.

A waiver is not for a ban. A waiver is for inadmissibility grounds when adjusting to Permanent Resident status. If you click on the link I posted on my earlier post, you can verify this. A ban is something that gets triggered when you become inadmissible, you leave, and you don't qualify for one of the waivers or there is no waiver for your offense to be able to return.

I use the word "ban" to refer to an inadmissibility ground that lasts for a period of time or forever. A waiver is for an inadmissibility ground. The ineligibility of someone in a non-Immediate-Relative category to adjust status if they have been out of status is not an inadmissibility ground -- it is a separate condition of eligibility of AOS. There is no "waiver" for this ineligibility.

 

[newacct]

C) If OP entered lawfully and has accrued unlawful stay, then I think it is possible to for her to marry and file I-130, I-485 and I-601 waiver concurrently to waive the unlawful presence. Since she hasn't had her asylum interview yet, these two cases can continue on separate tracks.

This is incorrect. If the OP entered lawfully and is now out of status, or has ever been out of status on this stay or any previous stay, the OP cannot file I-485 to immigrate as the spouse of a permanent resident. I-601 cannot be filed with I-485 because she cannot file I-485.

 

[SusieQQQ]

Are we disputing the category on the green card or the fact that Green Card Holders can sponsor relatives?

I agree she would need a waiver either way.

The category, she will not be an “immediate relative” in immigration terms, and is therefore subject to greater restrictions.
(if she was an IR category, she would not need a waiver just for overstay or working illegally, those are explicitly and automatically forgiven for IR.)

 

[newacct]

(if she was an IR category, she would not need a waiver just for overstay or working illegally, those are explicitly and automatically forgiven for IR.)

Technically, there is no "forgiveness". Someone in the IR category does not need a waiver for overstay or working illegally because neither overstay nor working illegally causes an inadmissibility (ban) by itself. The unlawful presence ban is only triggered by accruing more than 180 days of unlawful presence and then leaving the US. Someone in the IR category who entered legally is eligible for AOS regardless of whether they are in status, and thus does not have to leave the US, and if they don't leave the US, and just do AOS in the US, they don't have an inadmissibility and don't need a waiver. However, if someone in the IR category accrues more than 180 days of unlawful presence and then leaves the US, for whatever reason, they would still trigger an inadmissibility and need a waiver. It is not "forgiven".

For other categories, it is also true that if they have not left the US, they don't have an inadmissibility no matter how much unlawful presence they have accrued. But, the difference is that people in those other categories are not eligible for AOS if they are not in status. So, the only way for them to immigrate is through CP, which requires leaving the US, and when they leave the US, they will trigger the inadmissibility, and that's why they need a waiver.