In my column This week's Consulta Migratoria® answers a question from a reader who wishes to apply for permanent residency through his wife.
Each case is different and the answers vary depending on each person's immigration history.
Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.
This is the column:
I am Salvadoran and I entered the United States illegally in 1997. In 1999, a notario helped me apply for asylum and my case was denied because I filed more than a year after I arrived in the country. In 2000, an immigration judge issued a voluntary departure order but I did not leave.
In April 2001 I applied for TPS and was approved. I have not failed to renew my permit and I am married to an American citizen. We live in California and have a seven year old daughter.
I heard that there is a new law that allows people with TPS to obtain residency without leaving the country. Could I get my papers through my wife under this new law? --Javier C.
Javier, you should never have gone to a notary, least of all to file an asylum application.
Notarios are NOT authorized to give legal advice. That person advised you to file too late and had a voluntary departure order issued against you, which turned into a deportation order by not leaving the United States.
You may be able to obtain permanent residency through your spouse. However, your case is complicated and you should proceed with great caution before beginning any immigration proceedings.
Judicial Decision
The Federal Court of Appeals for the Ninth Circuit ruled last month in favor of a lawsuit filed by Salvadoran Jesús Ramírez, which allows certain undocumented immigrants covered by Temporary Protected Status (TPS) to apply for permanent residency within the United States.
In his lawsuit, Ramirez argued that although he entered the United States illegally, by granting him TPS in 2001, the federal government legitimized his entry into the United States.
The federal government has until June 29, 2017 to appeal the decision of the Federal Court of Appeals for the Ninth Circuit.
If they do not appeal the decision, certain individuals in TPS, including Salvadorans, Nicaraguans and Hondurans, could obtain permanent residency within the country if they meet all the requirements.
Eligible persons under the new court ruling
To obtain residency within the United States, the immigrant with TPS must:
* Be married to a U.S. citizen or
* Have U.S. children over 21 years of age
* Be admissible to the country and not have committed disqualifying acts, including having certain criminal records or a deportation order.
* Live in a state under the jurisdiction of the Federal Court of Appeals for the Ninth Circuit - Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.
Process to be followed
Javier, you should request your immigration file from the immigration court and the United States Citizenship and Immigration Services (USCIS) as soon as possible.
Also, your spouse will have to file a family petition on your behalf. The federal government will approve the petition if they can prove that your wife is a U.S. citizen, that you are married, and that the marriage is genuine and not just for immigration benefits.
If your family petition is approved, you will need to ask the Office of the Chief Counsel of Immigration and Customs Enforcement (ICE) to jointly file a motion to reopen and close your case in immigration court. You will then need to file an application for adjustment of status with USCIS.
It is of utmost importance that you hire an immigration attorney to review your case carefully and assist you with any immigration proceedings.
Background
In 2013, the Federal Court of Appeals for the Sixth Circuit issued a similar decision.
That ruling is already law within that jurisdiction, and eligible persons with TPS living in the states of Kentucky, Michigan, Ohio and Tennessee could apply for permanent residency within the country.
Consult with an immigration attorney before beginning any immigration proceedings. Please do not use the services of notaries, immigration consultants, paper fillers and multi-services because they are not authorized to give legal advice.