Does marrying a US citizen waive being deported? 8 Answers as of August 24, 2011

Friends are having their backgrounds checked as they are in the last year of waiting for their permanent green cards to be issued. The wife has the EB2 visa. The father and son have been working without proper work visas for several years now. Both father and son have always written in their alien card numbers issued on every employment application. None of the major US companies have ever denied them work for not having the proper ‘work visas’. These companies issued W2 and 1099 income statements. Could the father and son be deported? At this point the USCIS has marked their application files with ‘red flags’. Will their desires for green cards be put on hold? The son's pending marriage to a US citizen is eminent; would pushing it up preclude being deported?

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Feldman Feldman & Associates, PC
Feldman Feldman & Associates, PC | Lynne Feldman
To properly answer your question about your friends I would need to know their complete immigration history. Employment-based cases require you demonstrate maintenance of status prior to filing the I-485 (or no more than 180 days out of status). Once the I-485 is on file with work card then they are not in status but in a period of stay authorized by the Attorney General which allows them to remain here. They may be eligible to pay a penalty fee if their case was started long enough ago or they can grandfather onto an older case. I wouldn't know without knowing the details of their history. Marriage to a U.S. citizen case is more forgiving about maintenance of status and you need only show a legal entry in most statuses - there are some exceptions (doesn't matter how many years ago) or eligibility to grandfather under an older case filed on their behalf. I suggest they consult with an immigration attorney to have their cases evaluated properly. They should know the answers to these questions if they were advised properly.
Answer Applies to: California
Replied: 8/24/2011
Montefalcon Law Offices
Montefalcon Law Offices | Alberto G. Montefalcon, Jr.
Marrying a US Citizen does not prevent the arrest and putting into removal (deportation) proceedings of an alien who is out of status and currently in the US. It may however be a matter of defense, by way of relief to a removal, if an otherwise removable alien is married to a US citizen. In such case, the Petitioner US Citizen spouse and the Adjustment of Status Applicant spouse have to file the necessary Petitions and Applications, and present clear and convincing proof of the legitimate intent of the marriage - to live together as husband and wife and not just for the sole purpose of obtaining a green card. While generally, working in the country without authorization prevents an alien from obtaining relief under immigration law, one exception is when the petition relative is a direct relative (spouse, parent, unmarried child under 21 years old). In such cases, having performed such work and incurring periods being out of status, becomes immaterial. Exception to this exception applies if the alien worked too soon (within 60 days) from entering on a non-working non-immigrant visa. In which case, the USCIS may deem the alien as having entered through a non-working, non-immigrant visa with the FRAUDULENT intent to work. If this happens the alien spouse may be denied the benefits of Adjustment of Status not on the basis of having worked without prior authorization nor being out of status, but rather because the alien committed FRAUD, which casts doubt on the moral character of the intending immigrant.
Answer Applies to: California
Replied: 8/15/2011
Law Offices of Caro Kinsella
Law Offices of Caro Kinsella | Caro Kinsella, Esq.
If they filed under EB-2 concurrently with the I-485 then that is the status they are under (providing they were in status when they filed). If they were issued work authorization cards then these are valid unless the I-485 petition is denied. Lawful Marriage to a U.S. citizen is always a more expeditious route.
Answer Applies to: Florida
Replied: 8/12/2011
Christian Schmidt, Attorney at Law
Christian Schmidt, Attorney at Law | Christian Schmidt
It appears that father and son seek to adjust status through the wife's employment based visa petition but are out of status or violated their status. This will prevent them from obtaining their green cards through this avenue. The son will be able to apply for a green card upon marriage as long as he entered the U.S. lawfully. The marriage will prevent a deportation order if the Immigration Service approves a U.S. wife's visa petition.
Answer Applies to: California
Replied: 8/12/2011
Hugo Florido ESQ.
Hugo Florido ESQ. | Hugo Florido
In my 20 years of experience, while working in the U.S. without the proper authority can be a basis for removal, it is usually overcome by marrying a U.S.C.
Answer Applies to: Florida
Replied: 8/11/2011
    Law Offices of Grinberg and Segal
    Law Offices of Grinberg and Segal | Alexander Segal
    This is a very complex situation. Unfortunately, a person who illegally works in the U.S. is not eligible is inadmissible unless they qualify for an exception. However, whether the issue will come up at the interview depends upon the officer. It is better for your friends to honestly admit they have been working illegally rather than misstate this information as they will only compound their issues. If the father and son are found inadmissible, they could be placed in removal proceedings. They will have the right to seek relief from removal. The son could apply for resident status if he enters into a bona fide marriage with a U.S. citizen. The issue of his illegally working would not be a problem in that instance. However, it would be in the best interest of your friends to consult with an experienced immigration attorney as they have complex issues.
    Answer Applies to: New York
    Replied: 8/11/2011
    Fong & Associates
    Fong & Associates | William D. Fong
    Yes, if they are working without authorization, they will generally be denied permanent residence, unless they can show that they are grandfathered for section 245(i), but that law expired April 30, 2001. Marriage to a US citizen and the subsequent petition would forgive unauthorized employment.
    Answer Applies to: Texas
    Replied: 8/12/2011
    Law Office of Christine Troy
    Law Office of Christine Troy | Christine Troy
    This kind of case requires a full in depth analysis. I am happy to schedule an initial consult to fully look at this case and to answer your questions. That takes about one hour and my fee is $150. Otherwise I recommend scheduling a consult with another competent immigration attorney.
    Answer Applies to: California
    Replied: 8/11/2011
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