Docsanjose

hi friends, it's just been 5 months since we married, so as emphasised that a 2 yr.
requirement must be there, i think i have a very bad chance of staying legally here
in US, anyways, im concerned about my baby's future more than mine, thanks for the
suggestion of having an experienced attorney for my case....

Docsanjose

thanks so much for your valued suggestion. i think i must fight it out and leave the
rest on destiny. but i wonder what should i do now? should i inform the INS or just
wait for things to happen on their own? thanks
    > Hello:
    > My condolences about your loss.
    > I'm an immigration lawyer practicing in Los Angeles.
    > I think you have a good case -- but with several caveats which necessitate
    > obtaining a good immigration lawyer who will be assertive and enjoy a good
    > reputation with INS of knowing the immigration laws.
    > Unfortunately, this is a gray area of the law due to the fact that many INS offices
    > do not understand the law.
    > In 1986, Congress passed the "Immigration Marriage Fraud Amendments" [IMFA]. IMFA
    > created the two-year condition. In regards to fiances, it made the AOS fall under
    > the same section of law as other AOS's [section 245] rather than under its own
    > section. IMHO, this made the AOS "discretionary". IMHO, the effect of IMFA on
    > fiances was limited to these two areas.
    > In the law, the statute and regulations are clarified by published case law. There
    > is published case law which pre-dates 1986 which unequivocally states that you can
    > still adjust -- the K-1 visa required that you enter into the bona fide marriage
    > within 90 days -- you did that. However, there is no POST-1986 published case law
    > on your exact situtation.
    > I am of the opinion that the pre-1986 cases are still good law. But other
    > immigration attorneys have informed me that at least one INS office disagrees and
    > sent me their internal memo on the subject.
    > As I said, I think you have a good case -- but it might be a fight.

Ben Johnson

Get a lawyer ASAP.

You will be staying here in the US..... No one will be deporting a US citizen, (a
baby, at that) which is effectively what they are doing to your child if they were to
consider doing it to you...... but it WILL take a lawyer...don't even think about
doing it yourself.


"docsanjose" <[email protected]> wrote in message news:[email protected]
om...
    > hi friends, my life is all shattered after the death of my spouse, i came here on a
    > K1 and married my soulmate and also filed my application for adjustment of status,
    > but unfortunately, my wife died during the delivery of our baby before the
    > adjustment interview. now my life's purpose is to take care of our baby. my wife
    > had a dream of giving the best education to our child in US. but i want to know
    > whether my application will be revoked now and will be i deported if i dont leave
    > the country on my own?and what about our baby who happens to be a US citizen by
    > birth? please help yours truly

Mrtravel

Ben Johnson wrote:
    > Get a lawyer ASAP.
    > You will be staying here in the US..... No one will be deporting a US citizen, (a
    > baby, at that) which is effectively what they are doing to your child if they were
    > to consider doing it to you..

It happens all the time. Having a child in the US doesn't not grant you the right to
stay in the US. The child's ability to stay doesn't negate the INS's ability to
deport the parent. The child can only sponsor the parent after the child is 21.
Exception have been made in the past, but this is not alwayas the case. If it was
that easy, I woouldn't recommend a lawyer. It isn't that easy.. He needs a lawyer.

Ben Johnson

I did not say it was easy.....nor did I say having a kid here grants anyone the right
to stay here....

But I guarantee, this person who entered the US legally with good intentions and had
a kid here (now a US citizen) will not be deported. She simply needs an immigration
lawyer to craft her case properly.

Ben


"mrtravel" <[email protected]> wrote in message news:[email protected]...
    > Ben Johnson wrote:
    > >
    > > Get a lawyer ASAP.
    > >
    > > You will be staying here in the US..... No one will be deporting a US citizen, (a
    > > baby, at that) which is effectively what they are doing to
your
    > > child if they were to consider doing it to you..
    > It happens all the time. Having a child in the US doesn't not grant you the right
    > to stay in the US. The child's ability to stay doesn't negate the INS's ability to
    > deport the parent. The child can only sponsor the parent after the child is 21.
    > Exception have been made in the past, but this is not alwayas the case. If it was
    > that easy, I woouldn't recommend a lawyer. It isn't that easy.. He needs a lawyer.

Ben Johnson

If your wish is to make things very difficult for a lawyer to undo, then yes.....just
wait for things to happen on their own.

If you wish to solidify the possibility of you and your child staying here than SEE A
IMMIGRATION LAWYER......TODAY !!



"docsanjose" <[email protected]> wrote in message news:[email protected]
om...
    > thanks so much for your valued suggestion. i think i must fight it out and leave
    > the rest on destiny. but i wonder what should i do now? should i inform the INS or
    > just wait for things to happen on their own? thanks
    > >
    > > Hello:
    > >
    > > My condolences about your loss.
    > >
    > > I'm an immigration lawyer practicing in Los Angeles.
    > >
    > > I think you have a good case -- but with several caveats which necessitate
    > > obtaining a good immigration lawyer who will be assertive and enjoy a good
    > > reputation with INS of knowing the immigration laws.
    > >
    > > Unfortunately, this is a gray area of the law due to the fact that many INS
    > > offices do not understand the law.
    > >
    > > In 1986, Congress passed the "Immigration Marriage Fraud Amendments" [IMFA].
    > > IMFA created the two-year condition. In regards to fiances, it made the AOS fall
    > > under the same section of law as other AOS's [section 245] rather than under its
    > > own section. IMHO, this made the AOS "discretionary". IMHO, the effect of IMFA
    > > on fiances was limited to these two areas.
    > >
    > >
    > > In the law, the statute and regulations are clarified by published case law.
    > > There is published case law which pre-dates 1986 which unequivocally states that
    > > you can still adjust -- the K-1 visa required that you enter into the bona fide
    > > marriage within 90 days -- you did that. However, there is no POST-1986
    > > published case law on your exact situtation.
    > >
    > > I am of the opinion that the pre-1986 cases are still good law. But other
    > > immigration attorneys have informed me that at least one INS office disagrees and
    > > sent me their internal memo on the subject.
    > >
    > > As I said, I think you have a good case -- but it might be a fight.

Chris Parker

    > It happens all the time. Having a child in the US doesn't not grant you the right
    > to stay in the US. The child's ability to stay doesn't negate the INS's ability to
    > deport the parent. The child can only sponsor the parent after the child is 21.
    > Exception have been made in the past, but this is not alwayas the case. If it was
    > that easy, I woouldn't recommend a lawyer. It isn't that easy.. He needs a lawyer.

He does need a lawyer. It will not be easy necessarily, but it is possible for
him to stay.

In his case, he entered on a K1 and married within 90 days. If he entered on B2 or
otherwise never married a USC, it would be a different story. In fact, he might even
be adjustable because a married K1 has permanent eligibility to apply for adjustment
of status by himself.

The thing to be argued for removal would be whether there are sufficient grounds
for deportation. These allowable grounds are enumerated and detailed at INA 237(a)
as follows:
(1) Inadmissible at time of entry or of adjustment of status or violates status.
(2) Criminal offenses.
(3) Failure to register and falsification of documents.
(4) Security and related grounds.
(5) Public charge.
(6) UNLAWFUL VOTERS.

The only way he could be deported, as I see it, is if INS determines his marriage was
a fraud or he was likely to become a public charge, or he has in fact become a public
charge himself. That's really hard for INS to do when he has evidence of a child
born in the marriage (the U.S. citizen child being eligible at birth for social
security benefits payable to the surviving alien parent, as well as survivor benefits
from the deceased spouse's social security). The important thing that makes a
married K1 different is that they really can't say he has violated his status by
remaining in the U.S., especially if he even applied for adjustment of status. If
they were crazy enough to deny adjustment on a non-marriage-fraud finding and then
try to deport him as a visa overstay, the immigration judge would really be compelled
to grant adjustment of status as discretionary relief from removal anyway. (presuming
it was applied for in the proceedings)

He needs to get a lawyer, because there could be more involved here and in his life
now than just a routine adjustment of status.

CP

Chris Parker

    > But I guarantee, this person who entered the US legally with good intentions and
    > had a kid here (now a US citizen) will not be deported. She simply needs an
    > immigration lawyer to craft her case properly.

Not necessarily. This person is only different because of the K1 visa and the
consequential fact that he is permanently allowed to apply for adjustment of status.

Here's an example how a couple who entered the U.S. legally, obeyed all the laws, had
children, and were living successfully got deported.

BIA Matter or Pilch - December 3, 1996 http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/-
pdfDEC/3298.pdf

CP

[email protected]

I thought AOS from a K-1 could only be done if one of the following is true

1. Married to the US Citizen that filed the petition that got you the K-1

2. Spousal abuse

What grounds would they have this permanent ability to adjust status?

Chris Parker wrote:
    > > But I guarantee, this person who entered the US legally with good intentions and
    > > had a kid here (now a US citizen) will not be deported. She simply needs an
    > > immigration lawyer to craft her case properly.
    > Not necessarily. This person is only different because of the K1 visa and
    > the consequential fact that he is permanently allowed to apply for adjustment
    > of status.
    > Here's an example how a couple who entered the U.S. legally, obeyed all the laws,
    > had children, and were living successfully got deported.
    > BIA Matter or Pilch - December 3, 1996 http://www.usdoj.gov/eoir/efoia/bia/Decisions/Rev-
    > dec/pdfDEC/3298.pdf
    > CP

Ben Johnson

    > Here's an example how a couple who entered the U.S. legally, obeyed all the laws,
    > had children, and were living successfully got deported.
    > BIA Matter or Pilch - December 3, 1996 http://www.usdoj.gov/eoir/efoia/bia/Decisions/Rev-
    > dec/pdfDEC/3298.pdf

That is apples and oranges.......

In that case you had a couple who had both violated numerous INS laws and court
orders, including coming here on tourists visa's and never leaving. A big difference
from the original poster's situation......provided she get's on this. This person
entered the US legally, with the appropriate visa, entered into a legitimate
marriage per K-1 rules and timeframe, etc.

Chris Parker

    > I thought AOS from a K-1 could only be done if one of the following is true
    > 1. Married to the US Citizen that filed the petition that got you the K-1
    > 2. Spousal abuse
    > What grounds would they have this permanent ability to adjust status?

Married the U.S. citizen petitioner, entered the marriage in good faith, but U.S.
spouse died from a medical condition. The basis of eligibility for a K1 adjustment
is derived from contracting the marriage. Ineligibility is defined as trying to
adjust on any other basis after entering on a K1. BTW - It would appear that someone
who enters on a K1 but does not marry can never apply for adjustment on any basis,
even if they depart the U.S. and enter again with a different nonimmigrant visa,
except if the new visa is another K1.

Pertinent regulations governing this: 8 CFR 214.2(k)(6) Adjustment of status from
nonimmigrant to immigrant
--
(i) [Reserved]
(ii) Nonimmigrant visa issued on or after November 10, 1986. Upon contracting a valid
marriage to the petitioner within 90 days of his or her admission as a
nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986,
the K-1 beneficiary and his or her minor children may apply for adjustment of
status to lawful permanent resident under section 245 of the Act. Upon approval
of the application the director shall record their lawful admission for
permanent residence in accordance with that section and subject to the
conditions prescribed in section 216 of the Act.

245.1(c) Ineligible aliens. The following categories of aliens are ineligible to
apply for adjustment of status to that of a lawful permanent resident alien
under section 245 of the Act.
(246) Any alien admitted to the United States as a nonimmigrant defined in section
101(a)(15)(K) of the Act, unless:
(i) In the case of a K-1 fiance(e) under section 101(a)(15)(K)(i) of the Act or the
K-2 child of a fiance(e) under section
101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based
upon the marriage of the K-1 fiance(e) which was contracted within
90 days of entry with the United States citizen who filed a
petition on behalf of the K-1 fiance(e) pursuant to § 214.2(k) of
this chapter;


CP

Chris Parker

    > In that case you had a couple who had both violated numerous INS laws and court
    > orders, including coming here on tourists visa's and never leaving. A big
    > difference from the original poster's situation......provided she get's on this.
    > This person entered the US legally, with the appropriate visa, entered into a
    > legitimate marriage per K-1 rules and timeframe, etc.

Yes, that is correct. Without a lawyer, however, who is going to make that case to
INS for him? As I mentioned earlier, he can stay, but you need to present the facts
correctly. Having children alone and behaving in society correctly won't protect you
by itself. K1 visa makes a big different for this person.


CP

Chris Parker

    > I thought AOS from a K-1 could only be done if one of the following is true
    > 1. Married to the US Citizen that filed the petition that got you the K-1
    > 2. Spousal abuse
    > What grounds would they have this permanent ability to adjust status?

BTW - For further insight, read this INS administrative decision denying a K1
adjustment. The marriage itself isn't the important thing; contracting it within 90
days of entry with the K1 visa is the important thing, as well as of course the
marriage being entered into in good faith by the alien and not found to be improper.

http://www.ins.usdoj.gov/graphics/la...5-<br /> .pdf


CP

Mrtravel

Chris Parker wrote:
    > BTW - For further insight, read this INS administrative decision denying a K1
    > adjustment. The marriage itself isn't the important thing; contracting it within
    > 90 days of entry with the K1 visa is the important thing, as well as of course the
    > marriage being entered into in good faith by the alien and not found to be
    > improper.
    > http://www.ins.usdoj.gov/graphics/lawsregs/Admindec3/L2/2001/Mar0801_01L2245-
    > .pdf

What does this have to with your earlier statmeent about having a permanent ability
to adjust status as a K-1. What do you mean by "permanent" ability to adjust status?
The INS decision your link points to is about a couple married before the K-1 holder
entered the US. Interesting argument..They weren't married when the visa was issued,
so they thought it could still be used after the marriage to enter the US.

Mrtravel

Chris Parker wrote:
    > > In that case you had a couple who had both violated numerous INS laws and court
    > > orders, including coming here on tourists visa's and never leaving. A big
    > > difference from the original poster's situation......provided she get's on this.
    > > This person entered the US legally, with the appropriate visa, entered into a
    > > legitimate marriage per K-1 rules and timeframe, etc.
    > Yes, that is correct. Without a lawyer, however, who is going to make that case to
    > INS for him? As I mentioned earlier, he can stay, but you need to present the
    > facts correctly. Having children alone and behaving in society correctly won't
    > protect you by itself. K1 visa makes a big different for this person.

I still don't see where it your post that says someone can adjust from K-1 if not
still married. You showed a section about ineligibilty to adjust, if entering on
another visa. Are you stating they have the ability to adjust even if no longer
married to the sponsor?