Would it be best if we married in the US or overseas for immigration purposes? 6 Answers as of January 31, 2011

I am 18 years old and my girlfriend just turned 17. I am an American citizen but she entered the US illegally from Brazil when she was 6. We have decided to get married and go to brazil for 10 years and then I will get a fiance visa to bring her legally since there is no way she can fix her status here due to entering illegally. Would it be better if we married in the US or in Brazil? Also would the 10 year bar be an automatic penalty for her being here illegally even though she would be underage when we go to Brazil or could it be a shorter wait time? I heard somewhere that if an illegal returns to their country before turning 18 1/2 this could lead to a shorter penalty from entering the US? Is this true? She has never got in trouble with immigration and she is leaving at her own will. Do these things count for anything?

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Feldman Feldman & Associates, PC
Feldman Feldman & Associates, PC | Lynne Feldman
The answer that follows is general and I would prefer to have the facts of your specific case before advising you specifically on what to do. But in general with these facts I would recommend marrying in the U.S., filing an I-130 petition for her and selecting consular processing. Once the I-130 is approved the case will be sent to the National Visa Center. NVC will collect fees and forms for consular processing and send the case to Brazil for her interview. She would then go to Brazil for medical exam and interview. If she is about to turn 18 at any time during the first two stages of her case then she should return to Brazil to make sure she is there before her 18th birthday. Persons under 18 cannot accrue unlawful presence in the U.S. so should not be found inadmissible. If not inadmissible then she will not need a waiver and the ten year bar will not apply to her. You may contact me as indicated below to schedule a consultation to work out the procedures, fees and timing to proceed with her permanent residency.
Answer Applies to: California
Replied: 1/31/2011
William C. Gosnell, Attorney at Law
William C. Gosnell, Attorney at Law | William C. Gosnell
If you get married, wait two years, then you can apply for a visa. Its best if you did that at the American Embassy in Rio.
Answer Applies to: Tennessee
Replied: 1/24/2011
Marie Michaud Attorney At Law
Marie Michaud Attorney At Law | Marie Michaud
There is a penalty for those who are in the US unlawfully for at least 180 days (a little less than 6 months - remember one year has 365 days) after the age of 18. Assuming there is no bar and no admissibility problem other than your girlfriend coming to the US illegally at age 6, I would suggest that she leaves the United States before accumulating the 180 days. She should have proof she left the country such as a stamped passport, plane ticket, etc...Attorneys also have a form available that a returning immigrant can take to the US consulate so that a US official out there can confirm she is outside the US, in front of them. You could either get married here, file the family petition or start the fiance petition while she is here in the US. It takes about 6 months for a petition to be approved. The petition could be approved before she has to go. Once the consulate gets her the appointment, she could leave the US, go to the consulate, stay for a few days, then return to the US, so you do not miss her for too long. My second suggestion is to speak to an attorney to make sure there is no other problem(s) such as use of fake documents to enter the US, or any interception while attempting to enter the US, etc...
Answer Applies to: California
Replied: 1/24/2011
Nicastro Piscopo, APLC
Nicastro Piscopo, APLC | Louis M. Piscopo
If your fiance entered the U.S. illegally, it is likely she was not admitted and inspected. Therefore, unless she is protected under Section 245(i) of the law she cannot apply for her Green Card in the US. In which case, after you married her, you would have to file and I-130 petition and she would apply for her immigrant visa at the US Consulate in Brazil.

Currently, your fiance is not subject to the 10 year unlawful present bar because she has not been unlawfully present ("ULP) in the U.S. for more than 180 days. The reason is that she does not begin accruing ULP until she turns 18 years old.
Answer Applies to: California
Replied: 1/24/2011
Javia & Moore
Javia & Moore | Marisa-Andrea Moore
Generally, one does not begin to accrue unlawful presence for purposes of the 10-year bar until they turn 18. That means if you were to go to Brazil and get married, the 10 year may not apply and you may be able to come back sooner. I recommend that you consult with an immigration attorney for more information as it pertains to your specific case.
Answer Applies to: California
Replied: 1/24/2011
    Law Office of Immigration & International Trade Law
    Law Office of Immigration & International Trade Law | Linda Liang
    No, where you marry does not matter. 10 years bar will be imposed on anyone who came illegally. You can obtain a waiver if you want to come back earlier. You are more than welcome to contact us for further assistance.
    Answer Applies to: Florida
    Replied: 1/24/2011
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