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

[zman44]

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.)

Got it. OK. I'm not disputing the category. I'm merely using 'immediate relative' as an indication that GC holders can also sponsor the same relatives as US citizens.

And this I'll let my relative know what she did wasn't possible, lol. This is probably why it's a good idea to always consult with an attorney. If there's a way, they are the ones who can find it.

 

[SusieQQQ]

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.

Ok, it’s an “exemption” rather than forgiveness, then. And no, from the way you explain it, I believe you have a flawed understanding, because you say “neither overstay nor working illegally causes an inadmissibility (ban) by itself” ...but it does cause a bar to adjusting. If you look at the section on adjustment in the USCIS manual https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2 , scroll down to F - bars to adjustment - then examine the table under that heading. The second block is the one that cites unlawful status/authorized employment as a bar to adjustment (so, “by itself”). If you then read across to the “exempt” column, you will see that immediate relatives are exempted from this bar, along with a couple of other categories (VAWA etc).

Edit: on reading again I think we may be talking at cross purposes. At no point was I talking about a ban or leaving the country first, I was only talking about bars to adjustment and forgiveness (exemption) thereof.

 

[SusieQQQ]

Got it. OK. I'm not disputing the category. I'm merely using 'immediate relative' as an indication that GC holders can also sponsor the same relatives as US citizens.

And this I'll let my relative know what she did wasn't possible, lol. This is probably why it's a good idea to always consult with an attorney. If there's a way, they are the ones who can find it.

That bolded sentence is also not true at face value. USCs can also sponsor parents (also IR by the way), married children and siblings; LPRs cannot.

The USCIS manual posted above indicates that your relative must have had some exemption to be able to adjust from an unlawful status.

 

[newacct]

And this I'll let my relative know what she did wasn't possible, lol. This is probably why it's a good idea to always consult with an attorney. If there's a way, they are the ones who can find it.

You are probably missing something about her case. The law on this is pretty clear, and I can point you to the law and the USCIS policy manual pages if you want. Don't go misleading others with

Ok, it’s an “exemption” rather than forgiveness, then. And no, from the way you explain it, I believe you have a flawed understanding, because you say “neither overstay nor working illegally causes an inadmissibility (ban) by itself” ...but it does. If you look at the section on adjustment in the USCIS manual https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2 , scroll down to F - bars to adjustment - then examine the table under that heading. The second block is the one that cites unlawful status/authorized employment as a bar to adjustment (so, “by itself”). If you then read across to the “exempt” column, you will see that immediate relatives are exempted from this bar, along with a couple of other categories (VAWA etc).

I said they don't cause an inadmissibility (ban). They do cause a bar to AOS (except Immediate Relatives and some special cases), but they are not "inadmissible".

 

[SusieQQQ]

I said they don't cause an inadmissibility (ban). They do cause a bar to AOS (except Immediate Relatives and some special cases), but they are not "inadmissible".

Sorry, I edited when I re+read and realized what you were actually addressing!

So to make sure i understand you : you are saying the waiver only applies for an inadmissibility and not just a bar to adjustment?

 

[msv5450]

@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.

That's not true.

If you get married to a US citizen -> you can get a GC in the US without having a legal status
if you marry a GC holder -> You have to be in legal status to adjust status in the US. otherwise, you'll have to go abroad and get a visa to come back.

I do not advise you to leave the US:
1) the embassies are closed and I don't think they will reopen until election in Nov because the administartion wants to show that they prioritize the public health over a bunch of foreigners.

2) Chances of getting an advanced parole for asylum seekers is very slim. You can apply but you will get denied

3) even of they give an AP, your reentry to the US is at the mercy of the CBP officers.

My advice is that you get married and live together. By the time you get denied by the IJ, your spouse will have already become a citizen and she can sponsor you in the US

 

[7of9]

Thank you all the contributors. I feel that advice dispensed here, better than attorney as all sides are vigorously prosecuted. The final position, taken by the OP, depends on information from both sides. No matter how you interpret the manual, I want you to know that your contribution is always welcome. Your perspective forces us to dig deeper, which is always good thing. Thank you everyone for contributing to this topic. I learnt a lot today.

 

[newacct]

So to make sure i understand you : you are saying the waiver only applies for an inadmissibility and not just a bar to adjustment?

Yes

 

[gaby123]

My question I guess is should I file advance parole before I leave the country for CP, and can i request CP on a third country if she can not go to the home country because it is not safe?

 

[Fin]

My question I guess is should I file advance parole before I leave the country for CP, and can i request CP on a third country if she can not go to the home country because it is not safe?

I think the primary questions you need to answer are:
1. How did you enter the US? On what visa?
2. Are you currently in status or out of status ? If out of status, what’s the expiry date on your I-94?

Advance parole is hard to get and even if it’s granted it will not “waive” the 3/10 year unlawful presence ban if it’s triggered. So you may be barred from entry regardless of advance parole unless you have an approved waiver. I suggest you tread with caution because a wrong move might mean that you end up getting separated from your Fiancé for many years.

 

[msv5450]

My question I guess is should I file advance parole before I leave the country for CP, and can i request CP on a third country if she can not go to the home country because it is not safe?

You can do consular processing in a third country as long as you are allowed to visit a third country. Many countries will not grant you visiting visas (such as Canada) because you have no permanent settlement in any country and therefore you have no ties that would make you eligible for a non-immigrant visa.
The other thing is that you will have to use your passport to travel to the third country and if the passport is already expired, you will need to get it renewed. The US embassy will not accept your visa request if your passport does not have at least 6 months validity. All of these will be considered as availing yourself of the protection of your home country. The US consulate knows that you have applied for asylum and they will view your asylum claim as frivolous which will bar you from any immigration benefits. even if you get the visa from the embassy, the USCIS might deny your adjustment of status because you made your asylum frivolous.

The marriage route would be a viable option if your spouse was a resident of another country like Canada instead of the US. I know a person who got Canadian PR while he he had a pending asylum case in the US. He got a Canadian immigrant visa and abandoned his asylum in the US for good. Of course, there are lots of bars for his reentry to the US but he doesn't care because he's living in Canada permanently.

 

[Fin]

. The US consulate knows that you have applied for asylum and they will view your asylum claim as frivolous which will bar you from any immigration benefits. even if you get the visa from the embassy, the USCIS might deny your adjustment of status because you made your asylum frivolous.

@msv5450 Your post makes sense except this part quoted above. USCIS or US embassy cannot make a finding of a frivolous asylum claim. Only an IJ or BIA can do that. See 8 CFR 1208.20

 

[newacct]

I think the primary questions you need to answer are:
1. How did you enter the US? On what visa?
2. Are you currently in status or out of status ? If out of status, what’s the expiry date on your I-94?

And also we need to know when the asylum was applied for, as she does not accrue unlawful presence while a bona fide asylum application is pending, if she did not work illegally.

Advance parole is hard to get and even if it’s granted it will not “waive” the 3/10 year unlawful presence ban if it’s triggered. So you may be barred from entry regardless of advance parole unless you have an approved waiver. I suggest you tread with caution because a wrong move might mean that you end up getting separated from your Fiancé for many years.

A departure while on Advance Parole does not count as a departure for the purposes of triggering the 3/10 year unlawful presence ban, if she returns on that Advance Parole. I don't know how that would work if she tried to get an immigrant visa while abroad and tried to return on that immigrant visa.

 

[gaby123]

I have accrued about 5 months of unlawful presence and I worked during all that time too and then I applied for asylum. And I do know a third country which I can go without a visa with my passport which is valid for another 3 years. will they issue me advance parole based on going to a third country for an immigrant visa.?

 

[newacct]

I have accrued about 5 months of unlawful presence and I worked during all that time too and then I applied for asylum. And I do know a third country which I can go without a visa with my passport which is valid for another 3 years. will they issue me advance parole based on going to a third country for an immigrant visa.?

So your I-94 expired 5 months ago? If you leave the US before you accrue 180 days of unlawful presence, you won't trigger a ban upon leaving. However, the Consular Processing process from filing of the I-130 to getting of the immigrant visa will still take around a year, so you would have to be outside the US for that long.

 

[Fin]

So your I-94 expired 5 months ago? If you leave the US before you accrue 180 days of unlawful presence, you won't trigger a ban upon leaving. However, the Consular Processing process from filing of the I-130 to getting of the immigrant visa will still take around a year, so you would have to be outside the US for that long.

It’s possible to get an approved I-130 and file for consular processing and just wait in the US until the appointment time. I know a few people who have done that. In fact someone I know went to Mexico for a day prior to their appointment and flew back immediately after getting the immigrant visa.

I think OP is in a good position since she hasn’t triggered any bars. She needs to keep her I-94 and asylum I-797 handy as evidence to prove that she has only 5 months of unlawful presence. Then once her I-130 is approved, file for consular processing, go to the embassy on the day of the appointment and return on an immigrant visa. I don’t see where the “Advance parole” would matter in this scenario. She would be returning on a immigrant visa and not as a parolee. If OP’s passport allows visa free entry to any country (Mexico or Canada would be the best), CP can be done there. Lot of non-mexican people go to Mexico to get their CP done.

 

[newacct]

I have accrued about 5 months of unlawful presence and I worked during all that time too and then I applied for asylum. And I do know a third country which I can go without a visa with my passport which is valid for another 3 years. will they issue me advance parole based on going to a third country for an immigrant visa.?

Did you work illegally at all during the asylum application or did you only work illegally before applying for asylum? Does this 5 months refer to the period of time between when your I-94 expired and when you applied for asylum?

 

[gaby123]

Did you work illegally at all during the asylum application or did you only work illegally before applying for asylum? Does this 5 months refer to the period of time between when your I-94 expired and when you applied for asylum?

I did work even after, and yes this 5 months is the period of time from when my i-94 expired and the day I applied for asylum

 

[newacct]

I did work even after, and yes this 5 months is the period of time from when my i-94 expired and the day I applied for asylum

Hmm... a pending asylum application doesn't pause accrual of unlawful presence if you have worked illegally (i.e. before you got an EAD) for even 1 day during the pendancy of your asylum application. So since you have worked illegally after you filed your asylum application, that means you have been accruing unlawful presence the whole time while your asylum was pending, which means you have accrued more than 180 days of unlawful presence, so you will trigger a ban if you leave the US (a 3 year ban if you accrued between 180 days and 1 year of unlawful presence before you leave the US; a 10 year ban if you accrued more than 1 year of unlawful presence before you leave the US). So you will need a waiver if you do Consular Processing abroad. If you go this route, your spouse would file I-130 after you are married; after the I-130 is approved it goes to NVC and you pay the visa fees, and then you can apply for a provisional unlawful presence waiver with I-601A while you are still in the US, and if you are approved go to the interview abroad. A waiver for this ban would require that you show that your citizen or permanent resident spouse or parent would suffer "extreme hardship" if you can't be in the US.

So I see basically 3 options:
1. Continue to try to get asylum
2. Do Consular Processing abroad with an waiver
3. Wait 5+ years for your spouse to become a US citizen, and then do AOS (assuming you haven't been deported due to a denied asylum before then)

The idea of using Advance Parole to get an immigrant visa is an interesting one and I am not sure whether it would work. Matter of Arrabally says that a departure after being granted Advance Parole does not count as a departure for the purposes of triggering the unlawful presence ban. If you can get Advance Parole on the basis of a pending asylum application, can you use that to get an immigrant visa abroad and enter on that visa? I don't know. Normally, if you use Advance Parole, you would return on that same Advance Parole, but here you want to use the Advance Parole only to not trigger the ban when leaving, and return on an immigrant visa, not the Advance Parole. I am not sure whether the logic of Matter of Arrabally would apply to that case.