I am married to a United States Citizen, but I have a deportation order, can I still apply to adjust my status?

I am married to a United States citizen, but I have a deportation order, can I still apply to adjust my status and become a legal permanent resident in the United States?  

Often I am asked by potential clients in this very same sitaution whether or not they have any chance to adjust status and become a Legal Permament Resident.  You guys know the deal. You or your family member enters the United States without inspection (EWI).  In other words, you try and cross the river south of the border and are apprehended by immigration officials.  You then apply for asylum.  Unless you've been living under a rock, most know it is extremely hard to win asylum in the United States.  You attend all of your hearings (very important because if you receive an ORDER IN ABSTENTIA you will be subject to OTHER BARS and WILL NOT BE ABLE TO REENTER THE UNITED STATES FOR 5 YEARS - although this is fixable but not discussed in this blog) .  In the interim, you fall in love with a United State Citizen and end up marrying that person.  At trial,  the IJ (immigration judge) denies your application and orders you deported. But, you want to file for adjustment now through your now US citizen spouse.  What do you do???

Assuming you don't have any other bars, is it possible to be able to adjust status?  Well.  Yes, and no.  When one enters EWI (as stated above) barring special circumstances, you are not allowed to adjust IN the United States.  In addition,  because you have likely gained Unlawful Prescence in the United States for more than a year, you will be subject to certain bars once you leave for your interview at the consulate.  In order to have that forgiven, you must file a 601a provisional waiver to ask USCIS to forgive your ULP.  But, what to do?  You now have an order of deportation and the 601a doesn't allow someone who has that order to file for forgiveness?  

Well, the law allows that VERY PERSON to apply for what is called a I-212 waiver:  Application for permission to Reapply for Admission into the United States After Deportation or Removal.  Essentially, the I-212 is the application that technically requests permission to reapply for admission into the United States AFTER Deportation OR removal.

So, the person referenced above is essentially asking immigration to CONDITIONALLY approve the application.  

And, if you are approved (conditionally), then you can actually file the I-601a for the unlawful presence that you had during your stay in the United States.  The 601a provisional waiver is a waiver asking immigration to forgive your ULP on a showing of extreme hardship to a United States SPOUSE OR PARENT (or that of a legal permanent resident SPOUSE OR PARENT).  The approved I-601a would forgive either the 3 or 10 year bar.  Remember, this approval is still only conditional and can be revoked any time.  

IF THERE ARE ANY OTHER BARS THAT YOU ARE SUBJECT TO, the 601a could be revoked at interview and you might have to wait outside the United States AND have to file a new waiver.

So, is this 100 percent proof?  No.  But, this does bring hope.  

Our office has done this many times in the past with great success.  If you or a family member are in a similar situation, don't hesitate to call us at 225-478-1111 or write us an email at david@rozaslaw.com

**** Please note that this Blog doesn't necessarily constitute legal advice on YOUR situation.  ALL situations are different and you need to speak with one of our EXPERIENCED immigration attorneys to find out what the right solution is to your specific case.