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She is here illegally. She was born in Mexico. She came here 10 years ago from Mexico with another relative, who also entered the United States illegally. I don't have the details regarding how the crossed the border.
She has attended school here in America, and is fluent in English and is a very good student.
The only forgiveness that existed for entering illegally was under INA 245(i) which states that if she had an I-130, I-140 or Labor Certification properly filed for her ON or BEFORE April 30, 2001 AND she could prove that she was inside the U.S. on December 21, 2000 unless the I-130, I-140 or Labor Certification was filed on or before January 14, 1998, then she could pay a $1000 penalty and adjust status to U.S. Lawful Permanent Residency. If she did not have any of those types of applications filed for her before that date, then she has three options:
1) Wait for the immigration reform that comes out. If it is approved the way that they are intending, then she may be able to get Residency if she entered the U.S. early enough.
2) Apply for Asylum (she had to have done this within the 1st year be being in the U.S. unless there are changed country conditions), Withholding of Removal, Convention Against Torture, or Cancellation of Removal. The first three things are if she fears to return to her home country because she believes that she will be specifically targeted due to her race, religion, nationality, social group or political opinion and that she runs a high risk of great bodily injury, torture, or death as a result. The last, Cancellation, she would have to prove that she has at least 10 years in the U.S. AND she must also prove that if she is deported, a U.S. Citizen or Lawful Permanent Resident that depends upon her will suffer exceptional and extremely unusual hardship. This hardship must be something more than emotional separation hardship or financial hardship, so it is difficult to get.
3) If she marries a U.S. Citizen (for love, of course), she could file an I-130 here in the U.S. (which will give her no legal status), but once that I-130 is approved, really the only thing she can do is leave the U.S. and apply to come back in at the U.S. Embassy/consulate in her home country as the spouse of a U.S. Citizen. At that point, they will want to deny her because she entered illegally and stayed. So she would have to apply for an I-601 waiver (forgiveness) and to get this waiver she will have to prove that her spouse will suffer extreme hardship if she is not allowed back in to the U.S. These waivers are very difficult to get. The reason they are difficult to get is because your hardship probably will need to be more than just economic hardship or emotional separation hardship. So because they are difficult to get, no one wants to risk leaving the U.S. and getting stuck outside for 10 years if it isn't granted.
You can look at this link to get more information on I-601 waivers. It is from the U.S. Embassy in Syria, but it is a good description and the process should be similar in all U.S. Embassies.
and here is another link:
And here is a link to what extreme hardship is:
And about Obama's new law, it isn't a new law. It is a new procedure but I think it could be a trap. Why? Because right now there are millions of undocumented persons in the U.S. that are married to U.S. Citizens and even have U.S. Citizen children but they do not leave because they are afraid to be stuck outside for 10 years. What has changed is that before, a person had to leave the U.S. and spend around 15 months or so while waiting for their appointment at the U.S. Embassy or Consulate in their home country and then HOPE that they got approved, but the change is that now they say that the same person can apply inside the U.S., supposedly get a pre-approval, but they still have to leave the U.S. and present themselves to the U.S. Embassy or Consulate. So why do I think it may be a trap? Because it could very easily be a way to just get those many millions of people to finally leave the U.S. and once they are outside, they can still be denied the waiver even though they have a "pre-approval". I just don't trust that. So at the very least, I would wait at least 6 months or more after they implement it (which is supposed to be in March of this year) to see how many of those pre-approvals turn out to be true approvals at the end and to see how many of those people actually come back. Here is an official link:
Keep in mind, that in order to qualify, it is ONLY the hardship of a U.S. Citizen or U.S. Lawful Permanent Resident spouse or parent that counts. The hardship of children does not count.
I am truly sorry for the bad news, but the options are very limited at the moment. Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!
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