Ask an Immigration Lawyer: I want to unite my family in the US

I fell in love with a Mexican. I got pregnant and wanted to get married. But because of his past problems we were told that if we do, he could be sent back to Mexico.

So we had 2 children (ages 3 and 1) without getting married. He was arrested for driving under the influence and sentenced to one year probation. In 2005, he got a letter from immigration court but did not appear. In Oct 2010, he was picked up by ICE and sent back to Mexico.

Without him I could not afford to care for the babies, so I took them to Mexico to live with him. The children have physical and emotional health problems; the older is biting his father; they don’t want to eat and the older one does not want to talk to me. They have no medical care in Mexico. I cannot afford to visit them more than twice a year. Right now I am so depressed.

I do not know what to do.

Aggie R. Hoffman

Before addressing the problems in this question, I want to point out that this is a good example of a detailed question. Many readers write about problems. But then they give only two sentences, leaving me guessing about the facts. And consequently limiting the answer I can give.

When writing, it is best to always use dates of events. When and how entry to the US was accomplished. Disclosing arrests and its outcome, any immigration court hearings and outcomes. When and why departure from the US occurred. Family ties in the US and the home country, and personal suffering of family members as a result.

Without a detailed meeting with the attorney, it is impossible to get all the facts. That’s because the client often does not realize what information is important and which will be most helpful.

Fiancé Visa or Marriage

I recently wrote about the process and benefits of the fiancé(e) visa (K-1). Clearly, it is not ideal for all situations. This is especially true where the fiancé(e) has been in the U.S. illegally for long time periods or has been deported.

Under such circumstances, returning to the U.S. as a K-1 means having to apply for a waiver of inadmissibility. Such a waiver is granted only based on evidence of extreme hardship to U.S. citizen or resident parent or spouse. That relationship is missing in your situation.

It is not clear from the question whether the father of your children (I will call him Martin) has resident or citizen parents in the U.S. I will assume that his only relatives are the two U.S. citizen children, and they are now in Mexico. The law, unfortunately, does not recognize a child as a qualifying relative for the waiver.

The first step is to qualify Martin to return to the U.S.; this means marrying him. Since he is outside the U.S., you will have to travel to Mexico to marry. Make sure that you bring back a certified copy of the marriage certificate.

Processing the Immigration

When you get married, take photos to further evidence the union. Typically, parents, siblings and other relatives attend the ceremony so they also should be in the photos. While a civil ceremony is adequate, some couples also have a church wedding. If you do, be sure to have photos of that also.

Hopefully, you also have photos taken together while Martin was in the U.S.. This includes him with the children and the two of you together.

Upon return to the U.S., you will need to file the visa petition (I-130) on behalf of Martin. It will take several months for a decision on the I-130. While you wait, you should also begin to build the case to support the waiver of inadmissibility.

Martin appears to have three obstacles to his U.S. immigration.

First, because he was present in the U.S. without legal status for over a year, he may not return for ten years.

Second, because Martin has been removed from the U.S. by order of an Immigration Judge, he is inadmissible for 5 years.

Finally, his conviction for driving under the influence (DUI) may prevent him from returning if it is a crime of moral turpitude. It appears that there was no accident or injury as a result of the DUI since his sentence of conviction is limited to one year of probation. If this offense occurred in California, it does not reflect a crime of moral turpitude; and if this is his only criminal record, it should not keep him out of the U.S.

Although Martin has two separate immigration offenses, the bar to his immigration will run concurrently. In other words, he does not need to wait 15 years. The maximum period is 10 years.

This can be forgiven if a waiver is granted based on extreme hardship to you, his spouse. The 10 years can be forgiven if a waiver is granted based on extreme hardship to you, his spouse, but not the five years, because he failed to appear in Immigration Court.

Preparing the Application for Waiver

It is clear from your question that your situation is dire. While the underlying cause is financial, the separation of the family weighs heavily on you because you are separated from your children.

Worse yet, the emotional toll on you of having had to leave your children in Mexico is no doubt magnified by the impact of their psychological and medical problems, including their alienation from you. It must be heart wrenching and unbearable for you.

All of this must be communicated on the waiver application in the greatest detail through a written statement by you, by “Martin”, and by your parents. In addition, in these types of situations, I recommend that my clients obtain a psychological report because then a particular diagnosis can be reached, whether it is depression, post traumatic stress disorder, or the like.

Of course, such reports are expensive. If you have medical coverage through your job, you could inquire whether it includes psychological testing and evaluation for such a written report.

Processing time for the waiver can also take six months or longer, so you should begin to work on it as soon as you return from Mexico and after you file the I-130.

Filing the Waiver

Because “Martin” is in Mexico, he does not qualify to have his green card application considered in the U.S. He will have to continue waiting in Mexico to be processed for his immigration.

Once the I-130 is approved, it will be sent to the American Consulate which will require the filing and processing of his application for immigrant visa. He will be instructed to undergo a medical examination and establish that he has no criminal record in Mexico. When all the paperwork has been completed, “Martin” will be scheduled for his visa interview.

Because of his past record in the U.S., he will be denied the visa and will be informed that he must file for a waiver. It is only after this denial that “Martin” will become eligible to file for the waiver. Knowing this, the waiver can be prepared ahead of time and filed with the consulate right away.

While the application for the waiver is filed with the Consulate, it is not the consulate that makes the decision on it. Instead, the application is sent to the Citizenship and Immigration Services (CIS). Once the CIS makes a decision, and it is a favorable one, the immigrant visa will be issued and “Martin” will be able to immigrate to the U.S. If the waiver is denied, it can be appealed, but that procedure can take 1-2 years,

Your case is complex, the road is long and the wait will no doubt be difficult, but the sooner you begin, the earlier you can hope for a positive outcome.

CAVEAT: The above is not a complete legal analysis, does not constitute legal advice, nor should it be construed as such. For a case specific analysis, consult an experienced immigration attorney for a private and extensive review of the facts of your case.