Friday, July 1, 2011

If Someone Entered The US Without Inspection, Can This Person Marry A US Citizen To Lawfully Stay In The US?

Most likely not. But the undocumented individual has a long shot to stay in the US in rather unique circumstances. You should speak to an immigration lawyer if you are personally aware of these circumstances.

Imagine a person who entered the United States, then eventually married a US Citizen or Lawful Permanent Resident green card holder. They raise children together, earn paychecks, and live like a normal family for years.

Yet even if the couple has multiple children, stays out of trouble, behaves well, and lives in the US for a long time, the unlawfully present spouse will likely be deported if apprehended.

In this situation, the legal test to determine whether a person qualifies to stay in the US will likely be the “cancellation of removal and adjustment of status for non-LPRs” test found in INA §240A(b). The key element is to show that removal would result in exceptional and extremely unusual hardship to the United States citizen or Law Permanent Resident spouse, parent, or child.

The hardship must be “substantially beyond” the hardships ordinarily associated with a person’s ordered departure from the United States. See Matter of Monreal, 23 I&N Dec. 56, 63 (BIA 2001). Mere ordinary hardship includes hardship the children suffer without a biological parent, hardship two spouses suffer when they are separated, and hardship from a lack of job opportunity country designated for removal. This law is tough, so these reasons alone will highly likely deport the undocumented person.

The hardship must be “substantially beyond” ordinary hardship, so disabilities, relatives in the US and in the home country, number of years in US, employment and financial conditions, and community ties all play major roles to build a winning case. For example, if the undocumented person is the caretaker for a disabled US citizen spouse, then this case has a chance.

In addition to exceptional and extremely unusual hardship, one must also prove that the individual has (1) been physically present in the US for at least 10 years, (2) has been a person of good moral character for 10 years, (3) has not been convicted of an offense under INA §212(a) [crimes involving moral turpitude], §237(a)(2) [crimes for a sentence of one year or more may be imposed, two or more crimes involving moral turpitude, aggravated felony, and some others], and (4) a favorable discretion is warranted.

In a nutshell, cancellation of removal for a non-lawful permanent resident cases are not easy. Under current law, to marry a person who entered the United States unlawfully is a major risk to both spouses and their future family.