OPINION | USA VISA-IMMIGRATION CORNER :  Legalizing through your spouse back home?

Dear Atty. Gurfinkel:

I entered the US a few years ago as a visitor and have overstayed. I left behind my spouse and young children in the Philippines, and have been trying to find a way to legalize my status and bring them to the US to be with me. Right now, I am working as a caregiver, and my employer said he would help me out if that is possible. I’ve consulted with several attorneys, who told me there is no hope because I am out of status and I just have to wait for an amnesty. I miss my family very much. Is there any way we can finally be reunited in the US?

Very truly yours,

JG

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Dear JG:

In some cases, the law simply does not allow people who are out of status to obtain their green card (adjust status) in the US. If a person is not eligible to adjust status in the US, they would have to return to the Philippines on a provisional waiver (if eligible), to avoid the 10-year bar. But what if they are not eligible for a provisional waiver? Must they continue to pray for a change in law, while continuing to be separated from their family, communicating only through FaceTime, Viber, Zoom or Skype?

A possible alternative solution is to find a way for your spouse to be petitioned by an employer and immigrate legally, in which case she could bring along your children to the US. Many people in the US who are out of status think that they are the only way or avenue for the family to legalize their status in the US. But remember, your spouse back home is NOT “out of status.” She could be petitioned and immigrate “on her own feet,” without having to rely on you to be petitioned. Her eligibility for a visa is not dependent on your immigration status in the US, because she has committed no immigration violations. And she cannot be punished because you may have overstayed, committed fraud, etc.

For example, if there is an employer in the US with a bona fide job for which she is qualified, that employer could petition her from the Philippines. I posted several videos on my YouTube channel, US Immigration TV, about employment-based petitions, whether the person being petitioned is in the US or outside the US. While this may not result in YOU being able to legalize your own status right away, at least your spouse and young children could come to the US as green card holders. Then, perhaps in five years, she could naturalize and then petition you. But at least you would all be together in the US.

If this situation applies to you and your family, you may want to consult with an attorney, who can evaluate your situation and see if your spouse could be eligible/qualified to be petitioned for a green card through an employment-based petition.

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