Can my wife still file for me while in immigration proceeding and I’m found to be inadmissible? - Immigration Law Questions and Answers- LawQA.com

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Can my wife still file for me while in immigration proceeding and I’m found to be inadmissible?

I came to USA legally through f-1 visa, however, I didn’t go to school and I was detained by ice, they wrote me inadmissible. Later I was released under bail, now been in removal proceeding for 2 years now. I got married recently to a USA citizen. My question is, can she still file for me while in immigration proceeding and I’m found to be inadmissible? Do I need a waiver or not?

Havens & Lichtenberg PLLC
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If you do not have any criminal convictions, communicable diseases, history of immigration law violations, or national security reasons for inadmissibility (in other words, if the only reason why you were found to be inadmissible was your falling out of your F1 status), then your wife can file an immigrant petition for you, and you do not need a waiver. Your marriage will be subjected to a very harsh scrutiny, but, if you prove that it is a real marriage, you should be able to adjust status and receive a green card.

Answer Applies to: New York
Replied: 6/19/2013

Answer By Jack C. Sung
JCS Immigration & Visa Law Office
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Your wife can file for you in removal proceeding. Whether you need a waiver or not depends on the type of inadmissibility, which you didn't say anything about.

Answer Applies to: California
Replied: 6/19/2013

Answer By Alexander Segal
Law Offices of Grinberg and Segal
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Your wife can petition for you. Your marriage will be subject to heightened scrutiny as it will be presumed to have been done for the purposes of obtaining benefits. You may need a waiver. You have not provided enough information to fully address this issue. Schedule a consultation with an experienced immigration attorney to discuss the matter in more detail.

Answer Applies to: New York
Replied: 6/19/2013


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If your wife is a US citizen, she can file an I-130 petition despite the pendency of your removal proceedings. Because, your wife is filing the petition after you are already in immigration court, DHS is going to be very suspicious of your marriage and unless it is convinced of the good faith of your marriage, DHS will not approve that petition. You need a lot of evidence to convince DHS that this marriage was not entered into solely for immigration purposes. If approved, you will still get your green card. If the violation of your F-1 status is the only reason why you got into deportation proceedings, you should be able to get your green card approved. This is not a case I will suggest that you do on your own. I strongly urge you to hire an attorney for your case.

Answer Applies to: New York
Replied: 6/19/2013


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The short answer is that it depends on the reason you were found inadmissible. Because you are married to a U.S. citizen, she can file a Relative Petition on your behalf while you are in removal proceedings. For that petition to be approved, you must demonstrate by clear and convincing evidence that you have a bona fide marriage. In other words, you have to prove that you did not marry solely to provide an immigration benefit to you. Assuming that petition is approved, the Immigration Judge may entertain a Motion to Terminate your proceedings if he/she finds that you are admissible. Some reasons for inadmissibility can be waived. For example, waivers are available for some, but not all, criminal charges. Waivers are also available for fraud or willful misrepresentations, assuming that you can prove extreme hardship to your wife. Immigration law is very complex, and a single fact can change your outcome, depending on the circumstances. If you have been in removal proceedings for two years, I assume that you are represented by counsel. If not, you should be.

Answer Applies to: Minnesota
Replied: 6/18/2013

Vladimir Parizher
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You should take this opportunity and have your wife petition for you promptly. The review will be independent and the decision could come favorable for you. Once, and if, you are approved, I believe your removal proceeding will be terminated. In addition, you could request DHS attorneys to defer their action pending your spousal petition. However, it could only be done if your petition was filed. Get help of an immigration attorney to navigate you through this situation.

Answer Applies to: California
Replied: 6/18/2013

Christian Schmidt, Attorney at Law
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As long as you do not have a final order of removal or been granted voluntary departure more than 90 days ago, you appear to be eligible to apply for adjustment of status and avoid removal if an I-130 visa petition by your spouse will be approved. You should consult with an immigration attorney as soon as possible.

Answer Applies to: California
Replied: 6/18/2013

Answer By Bill T. Klein
Law Office of Bill Travis Klein
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You may be eligible as an immediate relative of a U.S. Citizen should your wife file a petition but more information is required to make a determination. Please be advised that there are special rules and procedures if you were married during removal proceedings. You and your wife should consult with an Immigration Attorney to walk you through the process and help you with the filing requirements if you qualify.

Answer Applies to: California
Replied: 6/18/2013


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Your wife can petition for you even while you are in Removal Proceedings. You may not need a waiver if your only ground of removability is the visa overstay. You should strongly consider consulting with and hiring an attorney - yours is not a straightforward case.

Answer Applies to: California
Replied: 6/18/2013

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