I have been in the United States since 1997. I came here on a student visa which expired in 1999. I have been here ever since. I have managed to not get into any trouble, although I have worked using my SS number since 1999. I am now married and have a child. I was actually married in 2006, divorced a year later, and married the same woman again in 2011. I would like to get advice on what would be the best way in obtaining my Green Card. Should we just apply on our own? Or should we seek legal help (be honest) just because I have overstayed my visa for so long? I would really appreciate the help.
In order to be eligible you must be qualified. There must be a basis of eligibility. Generally they are through an immediate relative or work. However, if you are not qualified you cannot obtain residence if out of status other than marriage to a U.S. citizen. If you were placed in removal proceedings you could ask for the removal to be cancelled based on the hardship to U.S. citizen immediate relatives. Otherwise you have to wait for a change in the law.
Do not do this yourself. Is your spouse a US citizen? If so, it should be relatively uncomplicated.
Well, I believe that you will be doing yourself a favor by retaining a lawyer to represent you, as I am pretty sure that your case will end up in an immigration court, which eventually may allow you to adjust your status in the US by cancelling deportation charges against you.
If your wife is a U.S. citizen, she can petition for you through a process called adjustment of status. You will have to prove that you entered the U.S. legally, and that the relationship is bona fide. If you have no negative criminal history or other issues, you can obtain your green card through this process.
If your wife is a USC, then you should apply for an adjustment of status with an I-485 packet. I have had cases similar to yours where the Adjustment Officer required a waiver of condition of inadmissibility and I do not think that this is something you should prepare on your own. I will never recommend that this kind of an application be done by the applicant himself since a little mistake can often delay the case for months and sometimes even unnecessarily lead to removal proceedings before an Immigration Judge. Therefore, if you think this is important to you and your family, then lawyer up and it will be a small investment for a lifetime benefit.
You should file for permanent residence. I would advise that you hire an experienced immigration attorney as you have a long-tem overstay and will be applying under section 245(a) to forgive the overstay and unauthorized employment.
Only you can decide if you should retain an attorney to assist you. Technically, you do not need an attorney to represent you. Your wife will need to file an I-130 Immigrant Petition for Alien Relative on your behalf and you will file an I-485 Application for Adjustment of Status. These forms require submission of the appropriate supporting evidence and other accompanying forms. You can find both the forms and instructions at www.uscis.gov. You should review the forms and the instructions to determine if you think you can file the paperwork without an attorney. Our office completes the forms for you and ensures they are filed with the appropriate supporting documents. Filing the forms improperly or with missing information can delay processing of the case as you will be sent request for additional documents. However, there are some issues in your case that you need to consider before making a decision to go it alone or hire an attorney. The length of unlawful presence is not really an issue for you unless you departed the United States since your visa expired. A few tangent issues that may come up to your length of unlawful presence are whether prior applications were filed on your behalf and if so, were they bona fide as well as you have been filing income taxes. If you have been working, you should be filing taxes. This can go towards discretion. Another issue, is your student visa. You will need to demonstrate that you did attend the school as designated. It is your burden to demonstrate you entered the country properly with a valid visa. You must also make sure you are not subject to the two-year foreign residence requirement. Some student visas require the person to return to their country for at least two years before they can petition for status in the U.S. This requirement can be waived depending upon your circumstances. Finally, the fact that you and your wife were previously married to one another and divorced and then re-married may be a problem. I do not mean to say you cannot explain this situation, but you will most likely be questioned about the reasons you divorced and why you re-married.
Despite your overstay you are likely eligible to adjust status based on your marriage to a U.S. citizen. The process can be complex and lengthy so I typically advise clients to at least speak with an immigration attorney prior to proceeding without representation.
I assume your wife is a US citizen. If so your case is simply: just file I-130 and I-485, wait for several months and you will be interviewed. If you pass, you get your green card. No penalty as you entered the country legally and your wife is a US citizen.
It is best to get help from a lawyer. Interview him or her to see if you are satisfied that you need the help and that this is the correct attorney to do the job. Your situation requires a knowledgeable attorney who will spent the time to go to the interview with you when necessary.
I would recommend filing with an attorney. There are several issues with the case. It should take about 90 days to get the green card.
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