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Can an Illegal Undocumented Alien Get a Green Card?

Updated on May 11, 2013

I have a friend, a Hispanic friend, who is here legally with Green card. Speaks good English, works steady makes $32,000 a year and probably will become a U.S. Citizen within a few months. He has a few kids, all Americans, born in California. That is not the problem.

His wife IS the problem. She is illegal and undocumented, speaks no English, does not work and stays at home with younger kids. She paid "coyotes", i.e., smugglers, to get her into America many years ago. In her first attempt, she paid $5000 for a fake Visa or Border Card. Even though the document had a photo of someone else, she took the chance. She was caught at the border when BP asked to see the Visa. They detained her, took her information and fingerprinted. She then was told to go back to Mexico. That was easy, she walked home to her place near Tijuana.

In another month, she paid another $3000 or so to get smuggled in. Not by car or plane, but by boat. The boat contained 20 people, all paying about the same amount or more. The loaded at night and the driver arrived rather drunk. Everyone was apprehensive with fear. The trip took much longer than normal because they got lost in the dark. Eventually, they landed somewhere near San Ysidro. She got out and walked miles to be picked up by relatives living in the area.

All this was years ago, before my friend had met and married her. Now, he would like to make her legal to stay after he becomes a U.S. citizen. Can she?

Since she has lived in the US illegally for over a year, things are much tougher, but the answer is yes BUT VERY time consuming.

Because she has tried once before and was caught and deported, she cannot apply for a Green Card in the US,like many can. She has to go to the US Embassy or Consulate in Mexico and they will see if she can be eligible of a K or V type visa. But, she can ONLY begin the process after showing proof she has lived outside the USA for 10 or more years. If she has not, she cannot even start. Why? Because she tried once and was caught and now resides illegally in the USA.

If she is not eligible for a visa, she must file a I-601 (Waiver of Inadmissibility) and a I-212 (Permission to Reapply for Admission) costing $585. The US Embassy will approve it or not. The 601, if granted, allows admission into the USA. The 212 is asking the USA permission to reapply.

The I-601 must be filed in the USA or at an US Immigration site outside. In her case, her best excuses are hardship because her kids are US citizens and need her. They don't want to live in Mexico. If she is caught, there is a high likelihood she would be deported because of the previous attempt. If that were to occur, the US could bar her from any reentry forever.

Like all legalities, the INS law is filled with exceptions based upon case nuances, for instance, if she had not tried to enter before or had not been caught and therefore no record, the time is reduced to living 5 years outside the USA.

For her, getting a Green Card will take a very long time IF she lives outside the USA, which I highly doubt. She will take her chances.


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