ELIGIBLE FOR VISA BUT NOT LPR??? DOES ANYONE KNOW?

[Charlotte]

Here are the facts on my husband:
- Entered US illegally in 1989 (age 14)
- Applied for assylum a few years later and so in turn became a legal, documented alien with work authorization.
- The asylum application is till pending (its been 9 years)
- He married a USC (me) while asylum application still pending & we want to adjust to LPR based on our marriage.
- He is here legally and has been legal ever since the revision of INA's IIRAIRA in 4/1/97 which makes him eligible for a IR Visa.
- Due to the way he entered the US I dont think he is eligible for adjustment to LPR though.

Is there anything we can do? Being that he hasnt been here illegally since the IIRAIRA revision the 3/10 year bar doesnt apply to him. So what is the punishment for the EWI back at age 14? Does anyone have any advice for us? We dont want him to have to go back to El Salvador for a long time just to adjust status yet we dont want to wait for his asylum application to go thru because it could be another 5 years! ANY THOUGHTS WHOULD BE GREATLY APPRECIATED. Were going to see an attorney but would like a little insider knowledge.

[Charlotte]

Here are the facts on my husband:
- Entered US illegally in 1989 (age 14)
- Applied for assylum a few years later and so in turn became a legal, documented alien with work authorization.
- The asylum application is till pending (its been 9 years)
- He married a USC (me) while asylum application still pending & we want to adjust to LPR based on our marriage.
- He is here legally and has been legal ever since the revision of INA's IIRAIRA in 4/1/97 which makes him eligible for a IR Visa.
- Due to the way he entered the US I dont think he is eligible for adjustment to LPR though.

Is there anything we can do? Being that he hasnt been here illegally since the IIRAIRA revision the 3/10 year bar doesnt apply to him. So what is the punishment for the EWI back at age 14? Does anyone have any advice for us? We dont want him to have to go back to El Salvador for a long time just to adjust status yet we dont want to wait for his asylum application to go thru because it could be another 5 years! ANY THOUGHTS WHOULD BE GREATLY APPRECIATED. Were going to see an attorney but would like a little insider knowledge.

[Katycab]

He would not need to go to El Salvador for a long time. He would just need to go for his appointment at the consulate, and then return. If he really did not want to go to El Salvador, you could request a consulate in another country, but the risk is that they would not acccept you.

[BEBE]

What is IIRAIRA?

[Charlotte]

Thanks Katycab! Thats helpful. We actually DO want to go to El Salvador in May...but only for a few weeks. Do you think its possible to set up the appointment to take place within a certain time frame or is entirely on THEIR terms?

Bebe - to answere your question; IIRAIRA stands for Illegal Immigration Reform and Immigrant Responsibility Act. It is the law that becasme effective 4/1/97 that bans immigrants from returning to the US for 3, 10 or 20 years (or permanently) depending on what they did wrong. Before it became effective, the bars were normally only zero, one or five years. Thank God my husband Entered without inspection & then became lagal BEFORE 4/1/97!

[lost in us]

No.
Your husband came to the Us and claimed asylum. How is he going to go back to the very same land he is claiming to be fleeing persecution and apply for a visa.
Read This
"A person can apply for asylum EVEN if he has no legal immigration status in the US (e.g., the status has expired). After the asylum application is accepted by BCIS the person can legally remain in the country while his application is pending. The person can then apply for a Travel Document ("Advance Parole") if he/she needs to travel out of the country. The travel to the home country is, however, not recommended as it can undermine the person's claim of fear."

He isnt a legal resident yet. He is pending yet with leave to stay in the US until its resolved.
I wouldnt travel back to ES

[Katycab]

Generally the consulate will tell you when your appointment is- and you would be pretty foolish to reschedule. However each consulate is different, and you could check the process in El Salvador (or your chosen country).

By going to the interview in El Salvador, he may very well undermine the Asylum application (although not necessarily), but since he will (hopefully) recieve residency based on the famliy app. it will be a moot point.

[Charlotte]

Thanks Katycab...I hope you dont mind that I keep asking you questions but Ive emailed & spoken with numberous people and attorneys and you seem to be the only one who's replies match with what Ive read on the USCIS website & the information I've researched.

How would I apply for this Visa for my husband?
- would I file the the I-130 or I-129F?
- would I file the I-485 at the same time?
- being that we are both in the US now, would
we need to indicate on the visa application
that due to his EWI we need to have the
interview in El Salvador so that once they
approve it he can enter the US legally? (I
just always assumed that since he's
already in the US legally they would
schedule our interview here in the US)
- last question; how long do you THINK we
would have to stay in El Salvador before they
allowed us to come back (I know these times
can vary and there is no way you can say for
sure...but do you have any guesses? 1 month?
3 months? 6 months? maybe?

Anyway, if you or anyone who reads this happens sto have an opinion about these questions Id like to hear them...???

[Katycab]

Hello again-

You need to begin by filing the !-130. You cannot file the I-485. If you want him to enter under a K visa you can file an I-129 after the I-130 has been received. You could incluse a cover letter making the situation clear. A good cover letter is always a good idea. Since you are not filing a I-485 they will automatically send the packet to the consulate named on the I-130. (To further avoid confusion, you can leave blank the part about where in the US he would like to adjust, if eligible). You should not have to spend long out of the country (presumably ES). You do need to be ready to make travel arrangements as soon as you know your appointment date. Some consulates may make you return for the Visa after finishing a background check, or wahtever other reason. You can check the website for the consulate you will use (El Salvador?)

Remember that Adjustment of Status is a privelege, and only afforded to those who qualify under 245. Leaving the country is traditionally the "standard" way to receive an immigrant visa. People have become accustomed to getting it, so it is kind of considered "unusual" now to leave the country to get the IV. I think part of that is because of the bars, most of the people that don't qualify to adjust also don't qualify to enter now.