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Ask Thomas K. Brown, Esq. Your Own Question
Thomas K. Brown, Esq.
Thomas K. Brown, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 333
Experience:  I have gotten green cards for numerous immigrants, both through USCIS and the Immigration Courts.
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I am a U.S. citizen and my girlfriend has been in this country

Resolved Question:

I am a U.S. citizen and my girlfriend has been in this country for four years. She is undocumented, and is here illegally. We want to get married, and I am afraid she will never get citizenship status or will recieve any benefits in the future if we decide to have children. She has family here who are citizens. Some are illegal. She works for a US family as a nanny? Any suggestions?
Submitted: 8 years ago.
Category: Immigration Law
Expert:  Thomas K. Brown, Esq. replied 8 years ago.
A lot depends on how she came into the country. Did she enter on a visa of some kind and then simply overstay, or did she illegally enter in the first place (i.e., "jump the border")?
Customer: replied 8 years ago.
She entered illegally , jumped the border. No visa
Expert:  Thomas K. Brown, Esq. replied 8 years ago.
That's very unfortunate. There really isn't anything you can do, marriage or not. Marriage to a US citizen, or otherwise becoming an "immediate relative" (the spouse, parent or unmarried minor child of a US citizen) can cure problems of overstaying a visa or working illegally. But it cannot cure illegal entry.

To be sure, there are ways of curing that, but I don't believe any apply in this case. Although it is no longer current law, the old provision known as "245(i)" (a reference to that section of the Immigration and Nationality Act, or INA) can still help some people, but only if they've been here since at least December 21, 2000. And then, only if there were the beneficiary of some immigrant visa petition filed on or before April 30, 2001. It doesn't sound like 245(i) applies in her case.

Others who illegaly enter can get green cards by self-petitioning under the Violence Against Women Act (VAWA), but this requires showing that someone (even a man) is the vicitim of domestic violence or other "extreme cruelty" at the hands of their US citizen or green card holding spouse. As your girlfriend isn't married, it doesn't sound like VAWA is a possibility.

Others file for asylum, but this must be done within 1 year of entry except under extreme situations that are very rare.

I believe that under current immigration law there is no way to cure your girlfriend's situation. There are over 12 million people in the US in a similar situation with no path to legalization. Everyone agrees, more or less, that something must be done to fix this. It's hard to say when immigration reform will come and who it will benefit, but something will happen, that much is clear. I wish I had better news for you and your girlfriend, but that's unfortunately the current state of the law. I sincerely XXXXX XXXXX when immigration reform comes round it does benefit you both. Good luck.
Customer: replied 8 years ago.
Ok, this is basically what I have heard, but not really with a lawyer. I have heard a lawyer talk about specific waivers that could benefit our situation. Im not sure, but after specific questions asked over a phone consultation (information she asked about my girlfriend), it seemed that the lawyer can make a case for her based on waivers, and possible loopholes. Im wondering if this lawyer just trying to make me come in and make me pay $200 for an initial consultation when they know the case is futile.
Expert:  Thomas K. Brown, Esq. replied 8 years ago.
There are many different types of waivers. Unless she has criminal issues or past document fraud, the main waiver I see applicable in this case is waiving her unlawful presence. The reason why your girlfriend wouldn't be able to get a green card while staying in the US is that she entered "without inspection" by a US Customs and Border Patrol officer. This isn't something that can be waived. The cure is for her to leave the US and attempt to return legally somehow. The problem with doing this is the so-called "3 year/10 year bar" on re-entry. Those who accure 6 months of "unlawful presence" (i.e., being "illegal") but less than 1 year, upon leaving the US, will not be permitted back in for 3 years. Those who accrue one year or more of unlawful presence, again, upon leaving the US, will not be permitted to return for 10 years. I emphasize "upon leaving the US" because the 3/10 year bar does not kick in unless the person leaves. If they stay here, no 3/10 year bar issue. You can seek a waiver of the 3/10 year bar, but in order to do so it requires showing some US citizen (other than the applicant's own children) will suffer "extreme hardship" if they are not allowed to return. This isn't "ordinary" hardship -- it's got to be "extreme." Maybe your girlfriend has facts that support this, but either way, it's a very difficult thing to do, and a huge risk to take. So-called "hardship waivers" are at the discretion of the US consular officers who issue visas, and I personally wouldn't want to put my life at the discretion of some consular officer.

Everyone's facts are different, and some may have good cases for a hardship waiver, but most don't. If this sounds like something that might be possible in your girlfriend's case, then a $200 initial consult with a lawyer might be helpful. If not, I'd save your money. Good luck with everything.
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