Does my illegal fiancee have to exit and re-enter the US if he wants to get his green card? 11 Answers as of January 31, 2011

I am a US citizen and my fiancee is entered the country illegally. We want to get married and I want to get him a green card, and was wondering if it is absolutely necessary that he leaves the country to be able to do that, or is there any other way? Other than entering the country illegally, he has no other crime.

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Feldman Feldman & Associates, PC
Feldman Feldman & Associates, PC | Lynne Feldman
If he entered illegally in MOST cases the final stage will have to be handled overseas with a waiver. There are two exceptions: 1) If your fianc is eligible for Section 245(i) program and can pay the $1000 penalty and process in the U.S.; 2) Certain military spouses are eligible for parole in place which allows the case to proceed in the U.S.

These are complicated cases and I would recommend a consultation to advise you on the procedures and fees for his case; we do charge for consultations but the fee paid would be a credit toward the fees for his case if we are retained thereafter.
Answer Applies to: California
Replied: 1/31/2011
William C. Gosnell, Attorney at Law
William C. Gosnell, Attorney at Law | William C. Gosnell
The correct proceedure is to get married then wait two years then you file an-130 for a visa.
Answer Applies to: Tennessee
Replied: 1/24/2011
Law Office of Michael E. Hendrickson
Law Office of Michael E. Hendrickson | Michael E. Hendrickson
Unless you could prove extreme hardship on you by his having to return to his native land, your application for a waiver of inadmissibility in his behalf would likely be denied. Therefore, the better course would likely involve him returning to his homeland now and applying in his behalf for the appropriate visa while he is there.
Answer Applies to: Virginia
Replied: 1/24/2011
Hugo Florido ESQ.
Hugo Florido ESQ. | Hugo Florido
It is not absolutely necessary to exit the U.S. Your fiance may be 245 (1) eligible. Even though 245 (i) allowing some people to pay a fine who entered illegal has been off the books since April 30, 2001 there are many instances were they are "grandfather" and may take advantage of the old law.

I encourage you to make an appointment so that we can discuss further.
Answer Applies to: Florida
Replied: 1/22/2011
Law Offices of Juan Dotson
Law Offices of Juan Dotson | Juan Dotson
Generally yes, if he has been in the US illegally for over 1 year. Qualifying for a waiver requires extreme and unusual hardship. There are other ways he can avoid going back to his home country, such as by filing a successful Convention Against Torture claim. Without more information, an attorney cannot give you more advice. Consult with an attorney.
Answer Applies to: California
Replied: 1/21/2011
    JCS Immigration & Visa Law Office
    JCS Immigration & Visa Law Office | Jack C. Sung
    Your fiancee will not have to leave the US if, and only if, that someone submitted an I-130 for her, or for her parents when she was a minor, and that it was done before April 30, 2001.
    Answer Applies to: California
    Replied: 1/21/2011
    The Vega Law Firm
    The Vega Law Firm | Linda Vega
    Illegal entry bars adjustment within the U.S. Your fiance will have to leave (self Deport) and then apply through an Embassy or Consulate. As he was in the U.S. with unlawful presence, he will need a waiver along with the application to adjust. Please consider talking to an immigration attorney.
    Answer Applies to: Texas
    Replied: 1/21/2011
    Javia & Moore
    Javia & Moore | Marisa-Andrea Moore
    This depends upon a number of factors. For example, if he had a family or labor petition filed on his behalf before April 30, 2001, it is possible that he would be able to remain in the United States and get his green card. I recommend that you schedule a consultation with an Immigration Attorney at your earliest convenience.
    Answer Applies to: California
    Replied: 1/21/2011
    Nicastro Piscopo, APLC
    Nicastro Piscopo, APLC | Louis M. Piscopo
    Unless your fiance is protected under Section 245(i), if he entered the U.S. without inspection he would have to be processed for an immigrant visa outside of the U.S.. Only aliens who are protected under 245(i) or were admitted and inspected can apply for their Green Card in the U.S. through adjustment of status.

    Also be aware that if you fiance has been unlawfully present in the U.S. for more than 1 year since turning 18 years old, once he departs the U.S. he will be barred from returning for 10 years unless he is granted as waiver.
    Answer Applies to: California
    Replied: 1/21/2011
    Calderón Seguin PLC
    Calderón Seguin PLC | Ofelia L. Calderon
    In general, the answer is yes, your illegal fiance would have to leave the U.S. after you get married and pick up his visa outside the U.S. The general rule is that in order to apply for permanent residence (green card) in the U.S., you must have been admitted or paroled into the U.S. (meaning entered legally in some manner) and you must be in a lawful status at the time of application. Although individuals married to U.S. citizens don't have to meet the lawful status requirement, they do still need the legal entry.

    There are some circumstances where it may be possible to obtain a greencard despite an illegal entry but there are not enough facts in this post to make that determination. I recommend consulting with a reputable immigration attorney to find out.
    Answer Applies to: Virginia
    Replied: 1/21/2011
    Law Office of Immigration & International Trade Law
    Law Office of Immigration & International Trade Law | Linda Liang
    No, she does not have to leave. Instead, she may adjust status in the country.
    Answer Applies to: Florida
    Replied: 1/21/2011
Click to View More Answers: