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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 108691
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I am a n undocumented parent of aus born child who is autistic

Customer Question

i am a n undocumented parent of aus born child who is autistic is there a way to file for a greencard through my son
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Welcome to JustAnswer! My name is***** I am a licensed attorney and I am here to help resolve your legal issue. Tackling legal issues can sometimes get cumbersome or confusing. Should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know at any time during our question and answer session if you are interested in these – I am happy to give you more details! You are NOT charged per question and you are NOT charged per response, so post at your desire! Just please remember that sometimes the law does not have an easy or convenient solution and that is not the fault of the expert. Please do not shoot the messenger.
How did you enter the U.S.? Illegally or with a visa? Which visa? What country are you from? How long ago did you enter the U.S.? How old were you when you entered the U.S.? Please try to answer each question. Thank you.
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Do not be afraid to answer. You are not charged per question, per response nor per answer. So it costs you nothing to respond. Also, I will not ask you for personal information and we can lock this down for privacy when we are done so that no one can read it.
How did you enter the U.S.? Illegally or with a visa? Which visa? What country are you from? How long ago did you enter the U.S.? How old were you when you entered the U.S.?
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
I do not know why you are not responding, but you are not charged per question, per response, nor per answer. So after I give you my answer, you can continue to ask me questions without additional charge until you are satisfied. I apologize if it is a site issue that you posted and the post did not go through. I do ask that you leave a positive rating for me for my service. Since I am not given a salary to be here, it is the only way that the website compensates me for the time and effort I spend providing you with valuable information.
I will assume that you entered the U.S. illegally, that you entered after the age of 16, and that you are not from a country where you could have TPS. If any of those assumptions are incorrect, please let me know.
Unfortunately, the only forgiveness that existed for entering illegally was under INA 245(i) which states that if you had an I-130, I-140 or Labor Certification properly filed for you ON or BEFORE April 30, 2001 AND you could prove that you were 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 you could pay a $1000 penalty and adjust status to U.S. Lawful Permanent Residency. If you did not have any of those types of applications filed for you before that date, then you have three options:
1) Wait for the immigration reform that comes out. If it is approved the way that they are intending, then you may be able to get Residency if you entered the U.S. early enough.
2) Apply for Asylum (you had to have done this within the 1st year of being in the U.S. unless there is a credible excuse or changed country conditions), Withholding of Removal, Convention Against Torture, or Cancellation of Removal. The first three things are if you fear to return to your home country because you believe that you will be specifically targeted due to your race, religion, nationality, social group or political opinion and that you run a high risk of great bodily injury, torture, or death as a result. The last, Cancellation, you would have to prove that you have been at least 10 years in the U.S. AND you must also prove that if you are deported, a U.S. Citizen or Lawful Permanent Resident that depends upon you 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 you marry a U.S. Citizen (for love, of course), you could file an I-130 here in the U.S. (which will give you no legal status), but once that I-130 is approved, really the only thing you can do is leave the U.S. and apply to come back in at the U.S. Embassy/consulate in your home country as the spouse of a U.S. Citizen. At that point, they will want to deny you because you entered illegally and stayed. So you would have to apply for an I-601 waiver (forgiveness) and to get this waiver you will have to prove that your spouse will suffer extreme hardship if you are 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 spouse's 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.
http://damascus.usembassy.gov/ina212.html
and here is another link:
http://www.uscis.gov/forms/centralized-filing-and-adjudication-form-i-601-application-waiver-grounds-inadmissibility
And here is a link to what extreme hardship is:
http://www.ilw.com/articles/2007,0717-scott.shtm
And about Obama's new law, the I-601A waiver, it isn't a new law. It is a new procedure. 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 the same person can apply inside the U.S., get a pre-approval, and then with that pre-approval they can leave the U.S. for just a few days or even a day, present themselves for a scheduled appointment at the U.S. Embassy or Consulate, and then get the final approval and come back as long as there are no other reasons of inadmissibility, just having entered the U.S. illegally or having overstayed. Here is an official link:
http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers
I am truly sorry for the bad news, but the options are very limited at the moment. I do think the I-601A is a good choice at this point if you were to marry a U.S. Citizen. Unfortunately, getting Residency through your son would not be possible at this time. Perhaps after he turns 21. Regardless, at least you know the truth and that will keep you out of the hands of unscrupulous attorneys that are looking to take advantage of a desperate situation to charge thousands of dollars for something that has very little chance of producing a positive result. One more thing that I can tell you as well is that for now, you are not a priority for deportation. Why? Because the government is short on money at the moment and they just don’t have the money to deport everyone that is deportable from the U.S. Because of that, they are focused on deporting persons that have serious crimes. So as long as you have no crimes in your background, your risk is very low. Here is a link and the most updated one:
http://www.ice.gov/doclib/news/releases/2010/civil-enforcement-priorities.pdf
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf
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Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Thank you for your kindness and respect. Good luck to you.