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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 108665
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I m a US citizen, married to a man who has withholding of

Customer Question

I m a US citizen, married to a man who has withholding of removal status and he entered without inspection. My petition was approved . He was not eligible for adjustment of the status. So, I want to know the options that he could get his green card.?
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Hello! My name is***** and I am a licensed attorney with more than 13 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.
The issue is that even if he gets his care reopened (which he would need to do to set aside the order of removal - yes, he has one, they just won't enforce it because he has "withholding" of removal), he still entered without inspection so he cannot get Residency through you unless he leaves the U.S. OR he qualifies for 245(i). Does he? Do you know what 245(i) is?
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
It is important that you respond. It doesn't mean that there is not a solution. I need to know the following:
1) When did he enter the U.S.?
2) What country is he from?
3) Did he have an I-130, I-140 or Labor Certification filed for him on or before April 30, 2001?
4) Does he have anything else in his background other than the one illegal entry?
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.
There is a way, but it is complicated. First, he needs leverage to reopen his removal proceedings. The leverage is acquired by filing an I-130 for him and once that is approved, then you file an I-601A waiver for him. The I-601A 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
If he gets also an approval of the I-601A, then he can use both I-130 and I-601A approvals to show that is should be eligible for U.S. Lawful Permanent Residency if he can leave the U.S. and come back. The problem is that he needs to have that order of removal set aside. To do that he has to reopen the case. This is done by filing what is called a proposed joint motion to reopen immigration proceedings. He has to give this to the ICE attorney and convince the ICE attorney to join in the motion. He should be able to do it with the I-130 and I-601A approvals. If the ICE attorney is not convinced, then the only choice is to file a motion to reopen immigration proceedings sua sponte directly with the court and pray the court decides to invoke their sua sponte power to reopen the case. Because if he cannot get the case reopened, there is no way to fix his status because you have an order of deportation against him.
This is very complicated stuff and the best chance is if you hire an attorney. You could try to find one at www.ailalawyer.com.
My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, 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 if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.