Jamaica Magazine

Immigration Frequently Asked Questions (FAQ) – I am in removal/deportation court…I entered the U.S. on someone else’s visa

This month’s article will be another FAQ session on general immigration topics that we hear about each month at our firm. Our answers will focus on family immigration matters and deportation matters.

Question 1: I do not want to hire an attorney to represent me with my Immigration because I was told that if I do Immigration will think that I have something to hide. Is this true?
Answer: This is a question that I frequently hear during a consultation with a potential client. I wanted to address this question but this belief is incorrect and it poses the greatest risk to an individual’s immigration case. The legal system in the United States is very different from the legal systems in other countries. In the United States the Immigration agencies do not believe that if an applicant has legal counsel that the applicant has hired an attorney to hide the applicant’s wrongdoing. Immigration petitions are based on immigration law. Some areas of immigration are more complicated than other areas. In addition, even with the simplest immigration matter it is beneficial to have an attorney because a rookie mistake by an applicant, who has no immigration knowledge other than what he has learnt from the immigration website and the internet, could result in a denial of the applicant’s application. In some cases a simple rookie mistake by an applicant can not only result in the denial of the applicant’s case but could potentially prevent that applicant from ever receiving immigration benefits unless the U.S. Government decided to change the immigration laws. Consequently, there is no shame and no negative assumption for hiring an attorney to represent you.

Question 2: If I am in removal/deportation court cant i just marry my girlfriend and get a green card.
Answer: The process of getting married and acquired permanent residence status i.e.,”green card” through a spouse is a complex topic especially when the applicant is already in removal/deportation proceedings. Whether or not the applicant is successful will depend on a number of factors. These factors are as follows: 1). How did the applicant enter the United States; 2). Why is the applicant in removal/deportation proceedings; 3). Does the applicant have a genuine “real” relationship with his or her spouse and can the applicant prove this in court; 4). Does the applicant have a criminal history that would make him or her ineligible for a green card; and 5). Does the applicant have any other previous immigration violations that would make him or her ineligible for a green card. These are the basic questions that must first be answered before we can know if the applicant will be able to acquire his or her green card through a spouse and avoid deportation.

Question 3: I entered the U.S. on someone else’s visa. Now I am married to a United States citizen and I want to get my green card. Can I just stay in the U.S. and obtain my green card?
Answer:  Entering the United States on another person’s visa other than your own is immigration fraud. In addition, entering the United States on a fraudulent document means that you did not have a “legal’ entry. If you did not have legal entry it means that you are now limited in your ability to remain the United States and apply to adjust your status to that of a permanent resident i.e., “green card.” In addition, in most cases you will need to submit and apply for a waiver for Immigration to waive the fact that you committed document fraud when you entered the United States. The good news is that you still have the possibility of obtaining your permanent residence i.e., “green card” but you will probably have to leave the United States and you will need to obtain an approval of your waiver. This process is complicated but possible. It would be best to retain an attorney to assist you with this process.

Question: 4. I just got married to my husband and someone told me that I had to wait awhile before I apply for my green card. Is this true?
Answer: Again, I encounter this question a lot. I believe it stems back to people in the community who believe that if you wait awhile before you apply for your benefits then Immigration will believe that you have a real marriage and therefore they will not give you a hard time in approving your case. The bottom line is that Immigration receives numerous fraudulent green card cases every day. Immigration assumes that every case is a fraud case until you prove otherwise. As such, I tell our clients that they should file their case when it is best for them. If I have a couple who are recently married and the wife has already overstayed her visa I am going to encourage them to file the wife’s case immediately. The reason for this is that the wife is presently in illegal status despite the fact that she is married to a United States citizen and entered the U.S. with a visa. Due to her illegal status she cannot work or drive in the United States. In addition, if Immigration discovers her illegal status and she has not yet submitted her paperwork to obtain her green card through her husband she is deportable and she can be detained and placed in removal proceedings. In the event that she is deported her spouse will still have the option to sponsor her for a green card but now the process will be longer and she will have the hard task of applying for a waiver to waive her deportation and to waive the penalty associated with the fact the she overstayed her visa. So in order to provide with her status and protect her from deportation I would encourage that couple to file immediately, Now some couples have the option to wait if the wife has a current work visa that she is able to utilize until she decides to apply for permanent residence through her spouse. Each couple’s timing is different. To know the best time for you please speak with an attorney.

Everyone please remember that we write these immigration articles to provide a service to you. We want our articles to address immigration questions and concerns that you want to hear about. If you have a question or an immigration topic that you would like to learn more about you can contact us directly at 678-736-5600 or via email at: [email protected].

Disclaimer: This article is a broad overview. This article is not legal advice and should not be taken as legal advice. This article is provided as a public service and is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed. 

About the Writer:
Safiya Byars is the founder and senior partner of the Byars Firm, Inc. She is a native of Kingston, Jamaica.  Attorney Byars shows her clients the best ways to get their cases approved the FIRST time while reducing processing times and avoiding immigration red flags that result in delays, denials, and deportation.  The Byars firm is located at 3720 Chamblee Dunwoody Road, Suite D2, Chamblee, Georgia 30341. Attorney Byars handles all immigration matters, deportation defense, family law, and life planning (trusts & wills). We can be reached at 678-736-5600 or via email at: [email protected]  and www.byarslawgroup.com

About the author

Safiya Byars, Esq

Safiya Byars is the founder and senior partner of the Byars Firm. Attorney Byars serves as the Chair of the Family Immigration Continuing Learning Education and the Vice-Chair of the Immigration Law Section of the State Bar of Georgia. She is a native of Kingston, Jamaica. The Byars firm is located at 3720 Chamblee Dunwoody Road, Suite D2, Chamblee, Georgia 30341. The Byars Firm handles Immigration, Family, and Estate Planning matters. We can be reached at 678-736-5600 and email: [email protected].