View Full Version : Can an inmate be the petitioner for illegal spouse


Pnut's Wifey
07-15-2010, 11:30 PM
Hello everyone,
My husband a has a friend that is incarcerated with him that has a question. His situation is that he is currently incarcerated in the TDCJ prison. His wife however is illegal. They have a five year old child who is a legal citizen as well as the inmate. Can the inmate apply and or be the petitioner for his wife to become legal? Even thought he is still incarcerated and as you may see has obvious a felony on his record? If so what are the steps and how will he be able to attend to the interview or does he sign power of attorney? Oh also he would like to know if his wife is deported will their child have to stay in the us since he is a usa citizen and even though there will be no one to look after him. Please help so I can tell my husband so he can try to help his friend? Any advice is much appreciated. Thank you all.

aba
07-16-2010, 12:12 AM
A person convicted of a felony is not automatically disqualified from sponsoring someone for a fiance (k-1) or spousal visa. However some felony offenses, mostly relating to domestic violence or other violent offenses will disqualify someone. That being said...

An inmate CAN NOT sponsor his wife because he will not be able to prove that he has documented income above the poverty line. He will have to submit tax returns with the visa application to prove he can financially support his girlfriend/wife. However once he's out and working, provided his crime doesn't disqualify him, he could begin the lengthy process to get his significant other legal residency in the USA.

If you'd care for the name of a great immigration lawyer send me a pm. Good luck.

lost14
07-16-2010, 08:11 AM
Actually he would sponsor her but she would also need a co-sponcer. This could be his parents a close friend, anyone that could accept financial responcibility for her for I think it is 3 years (not sure on how long). What it is the government doesnt want to make someone legal then have them go on the system.

If she came to the US illegally (no visa) then she has to leave the country and go back to her country to adjust status. You get the paper work rolling here then they give you and apointment. It you are from Mexico it is in Ciuad Juarez (right over the border) and a waiver packet must be submitted (because coming to US illegally gives you an automatice 10 year ban so you submit a waiver to be able to adjust before the 10years). If they have a simple cut and dry case. Like she has no criminal record, she is and outstanding member of the community and they can show extreme hardship to the US citizen (more so her husband but also the child) if she had to do the 10 years out of the US then the waiver will be approved that day and within a week she will have all her paperwork and be back in the US.

However if it isn't cut and dry and they are unsure what to do then the case goes into what is called backlog and for Mexico it is taking about a year to get an answer so she would have to stay there for a year.

If however she came to the US legally (like with a tourist visa) and that visa just ran out then she can adjust her status here in the US.

not sure how they would handle the proving that the marriage is a real marriage seeing as he can't go to the interview but I would think having a child together might help to convince ICE that it isn't a fake marriage.

You can check out www.immigrate2us.net (http://www.immigrate2us.net) to get more info on all this.

Oh and I think if she is deported they would take the child and either place them with another family member or in a foster home while she was being proceed and deported. I don't think ICE would pay to send the child with her but I am not sure. I would suggest that she makes sure she has a passport for the child and have given someone written permission to travel with her child and also something in place for someone to take care of her child if she is picked up.

There has been a lot of talks lately about not deporting anyone unless they have done something wrong. So as long as she doesnt get arrested she probably should be fine (at least for a little while).

brk103
08-10-2010, 02:56 AM
My husband is in prison and he was my sponsor, but, as lost14 says, I had to have another 'joint' sponsor even though we have enough money in the bank to cover us until he comes home. They do not have to be family, it can be a friend or relative. I came over on a visa which allowed me to stay for 6 months and at the end of the 6 months I didn't go back to UK and we began the Immigration process. It is long, exhaustive, incredibly invasive and was worth every minute of it!! We did hire an Immigration lawyer and the total cost was about $3000 for the lawyer and all the paperwork.We had to prove to Immigration that our marriage is 'the real thing' which is quite hard. How do you prove that you love someone?
Anyway, they believed us and I am now legally here.

Bunny77
08-26-2010, 02:06 PM
An inmate can be a sponsor but, as others have stated here, they will need a co-sponsor. That can be anyone provided that they meet the income requirement. If I'm correct, the co-sponsor will be liable for the "alien" until she becomes a U.S. citizen (which will be years down the line).

U.S. Courts caselaw says that USCIS (ex INS) cannot discriminate based on the nature of the marriage. In other words, unconventional marriages (if your friends were for example married while he was in prison), cannot be a cause for denial. In practice, if your file lands on the desk of the USCIS agent who is a jerk, your case might be denied and you'll have to appeal.

(I am a foreign national and my husband a US citizen, we met while he was in prison and married there. His petition on my behalf was denied twice, altough we had provided ample evidence that our relatonship was real and sincere. In the end, we sued USCIS in federal court and I obtained my green card whitin 2 weeks of the filing date!).

The law does not require to even prove that you are still in love at the time you apply for the green card, just that your entered the marriage in good faith (i.e. not for the sole purpose of obtaining a green card). There are many ways of proving the marriage is "bona fide." The child is the best proof, obviously, then there are letters, photos (inlcuding those taken during visits at the prison), phone records (especialy listing all the prison calls), log of all the wife's visits to him in prison (which the prison should be able to provide the inmate upon request), proof of communication/relationship with each other's family, sworn statements from family and friends on both sides (including inmates to whom the husband may have talked about his wife and kid), joined bank accounts, joint tax returns, any loans, credits cards, rental agreements in both spouses' names, etc.

Contrary to a widespread belief, your don't have to consummate (have sex) for the marriage to he legally valid. Privacy laws forbid USCIS to dig into your sex life and other private matters to ascertain the validity of your marriage (although that does not apply to the case here, it may be good to know for others who marry in prison and might not be eligibe for family visits).

Although USCIS will say that the petitioner (the husband) is required to attend the interview for the petition to be granted, it is BS. Indeed, there are exceptions for which the presence of a spouse can be waived if he or she cannot attend (see 2002 U.S. 9th Circuit court opinion in Ageyman v. INS), being in prison is a compelling reason... Also, the petitioner can prove his good faith by requesting that his appeareance be arranged by phone (this is also legally possible, see 2000 U.S. 9th Circuit court opinion in Beltran Tirado v. INS).

In cases where the inmate's release date is known (and not too far in the future), the USCIS might just pospone the interview until he/he is out of prison/jail. The alien spouse will be allowed to legally stay in the US (and possily be granted a work permit) while the procedure is pending.

I would advise hiring an attorney, but be warned that many attorneys are not necessarily well informed about what case law covers this particular prison situation (especially for those petitioners who were married in prison), so make sure the lawyer has a clue before hiring him/her. Also give the names of the above mentioned cases to your lawyer so he/she can research them and find other helpful caselaw.

I do not think the wife should have to leave the country to apply because she is the mother of a minor US citizen. Once you're out of the country there is no knowing when you're coming back... if ever! So I would advise to stay no matter what USCIS says. Again that's a situation that requires hiring an attorney.

My overall advice, don't let USCIS bully you, the truth is most low level agents (the ones who will handle your file), don't know the law that gorverns their job!

Hope that helps.

imanico1
11-28-2010, 12:11 PM
Bumny,

Thanks for your informative post reagarding the immigration matter, as it relates to an incarcerated sponsor. I was wondering about your comment about needing a co-sponsor. Was it your experience that a co-sponsor was required SOLELY for the income requirement? If not, do you know what other law or statute is not being met or that would otherwise disqualify a sponsor from being eligible for petioning for an immigrant? The reason that I ask is because I have a similar case, but the sponsor, in this instance, is the owner of a home and a NYC Medallion, both with a combined worth of nearly $750,000. In addition, the home is being partially rented and the Medallion and yellow taxi are being rented. Therefore, both are generating income, while the sponosor is incarcerated. In this case, the income requirement is still being met, as the income generated from both are enough to exceed 125% of the poverty income guideline.

Any input would be greatly appreciated. Thanks!

An inmate can be a sponsor but, as others have stated here, they will need a co-sponsor. That can be anyone provided that they meet the income requirement. If I'm correct, the co-sponsor will be liable for the "alien" until she becomes a U.S. citizen (which will be years down the line).

U.S. Courts caselaw says that USCIS (ex INS) cannot discriminate based on the nature of the marriage. In other words, unconventional marriages (if your friends were for example married while he was in prison), cannot be a cause for denial. In practice, if your file lands on the desk of the USCIS agent who is a jerk, your case might be denied and you'll have to appeal.

(I am a foreign national and my husband a US citizen, we met while he was in prison and married there. His petition on my behalf was denied twice, altough we had provided ample evidence that our relatonship was real and sincere. In the end, we sued USCIS in federal court and I obtained my green card whitin 2 weeks of the filing date!).

The law does not require to even prove that you are still in love at the time you apply for the green card, just that your entered the marriage in good faith (i.e. not for the sole purpose of obtaining a green card). There are many ways of proving the marriage is "bona fide." The child is the best proof, obviously, then there are letters, photos (inlcuding those taken during visits at the prison), phone records (especialy listing all the prison calls), log of all the wife's visits to him in prison (which the prison should be able to provide the inmate upon request), proof of communication/relationship with each other's family, sworn statements from family and friends on both sides (including inmates to whom the husband may have talked about his wife and kid), joined bank accounts, joint tax returns, any loans, credits cards, rental agreements in both spouses' names, etc.

Contrary to a widespread belief, your don't have to consummate (have sex) for the marriage to he legally valid. Privacy laws forbid USCIS to dig into your sex life and other private matters to ascertain the validity of your marriage (although that does not apply to the case here, it may be good to know for others who marry in prison and might not be eligibe for family visits).

Although USCIS will say that the petitioner (the husband) is required to attend the interview for the petition to be granted, it is BS. Indeed, there are exceptions for which the presence of a spouse can be waived if he or she cannot attend (see 2002 U.S. 9th Circuit court opinion in Ageyman v. INS), being in prison is a compelling reason... Also, the petitioner can prove his good faith by requesting that his appeareance be arranged by phone (this is also legally possible, see 2000 U.S. 9th Circuit court opinion in Beltran Tirado v. INS).

In cases where the inmate's release date is known (and not too far in the future), the USCIS might just pospone the interview until he/he is out of prison/jail. The alien spouse will be allowed to legally stay in the US (and possily be granted a work permit) while the procedure is pending.

I would advise hiring an attorney, but be warned that many attorneys are not necessarily well informed about what case law covers this particular prison situation (especially for those petitioners who were married in prison), so make sure the lawyer has a clue before hiring him/her. Also give the names of the above mentioned cases to your lawyer so he/she can research them and find other helpful caselaw.

I do not think the wife should have to leave the country to apply because she is the mother of a minor US citizen. Once you're out of the country there is no knowing when you're coming back... if ever! So I would advise to stay no matter what USCIS says. Again that's a situation that requires hiring an attorney.

My overall advice, don't let USCIS bully you, the truth is most low level agents (the ones who will handle your file), don't know the law that gorverns their job!

Hope that helps.

lost14
12-02-2010, 09:38 AM
Not an expert here but I thought if you were in jail you couldnt have a business making money. I might be totally wrong on that as I dont have first hand experience but I thought there was a bunch going on maybe with OJ Simpson or something and writing a book and making money.

Is the money that this person is making actually being handled by someone else?

If I am totally wrong on this them as long as he mets the income requirements you are fine. If someone else is managing this money in his absents then I would think you could just use them as a cosponsor.

mallafri
02-10-2011, 01:14 PM
Yes, you either need a co-sponsor or prove you have enough money to support yourself until you can find a job.

It seems some of you girls have managed to get the I-130 visa and the US embassy told me I couldn't get this cause my husband was in prison and hence we couldn't "consummate" the marriage. How did you get around it? My BF and I are getting married in May and we'd like for me to move to the US to be closer to him, but immigration's a pain since we're getting married by proxy! :(

mybabyinjail
02-17-2011, 05:56 PM
A person convicted of a felony is not automatically disqualified from sponsoring someone for a fiance (k-1) or spousal visa. However some felony offenses, mostly relating to domestic violence or other violent offenses will disqualify someone. That being said...

An inmate CAN NOT sponsor his wife because he will not be able to prove that he has documented income above the poverty line. He will have to submit tax returns with the visa application to prove he can financially support his girlfriend/wife. However once he's out and working, provided his crime doesn't disqualify him, he could begin the lengthy process to get his significant other legal residency in the USA.

If you'd care for the name of a great immigration lawyer send me a pm. Good luck.

I believe crimes of those natures will only disqualify them under the K1 process due to IMBRA. This body doesnt review Cr1 applicants as far as i know?

mybabyinjail
02-17-2011, 06:12 PM
Yes, you either need a co-sponsor or prove you have enough money to support yourself until you can find a job.

It seems some of you girls have managed to get the I-130 visa and the US embassy told me I couldn't get this cause my husband was in prison and hence we couldn't "consummate" the marriage. How did you get around it? My BF and I are getting married in May and we'd like for me to move to the US to be closer to him, but immigration's a pain since we're getting married by proxy! :(

As bunny just posted- get an immigration lawyer who knows about the case law- it is possible but you NEED a lawyer- who KNOWS about prison immigration situations. Read her post it explains everything ^

Ms.Coco
02-22-2011, 03:26 AM
Mallafri,
Have you been successful in marrying and immigrating to the US to be with your BF/husband?
I am in the same predicament and would like to know of others with a similar case. My American BF and I would like to marry but I am in the Philippines. He can't file for K1 visa for me as we havent seen each other in the last 2 years. I dont know if I can apply using a tourist visa. If I somehow manage to get a US tourist visa and use that to visit him. We can either get married when I get there and adjust status or I return home and he can apply for K1 visa with co sponsor for me. Is this feasible?

Yes, you either need a co-sponsor or prove you have enough money to support yourself until you can find a job.

It seems some of you girls have managed to get the I-130 visa and the US embassy told me I couldn't get this cause my husband was in prison and hence we couldn't "consummate" the marriage. How did you get around it? My BF and I are getting married in May and we'd like for me to move to the US to be closer to him, but immigration's a pain since we're getting married by proxy! :(

mybabyinjail
03-02-2011, 03:07 PM
Mallafri,
Have you been successful in marrying and immigrating to the US to be with your BF/husband?
I am in the same predicament and would like to know of others with a similar case. My American BF and I would like to marry but I am in the Philippines. He can't file for K1 visa for me as we havent seen each other in the last 2 years. I dont know if I can apply using a tourist visa. If I somehow manage to get a US tourist visa and use that to visit him. We can either get married when I get there and adjust status or I return home and he can apply for K1 visa with co sponsor for me. Is this feasible?

Hi,

Your issue would be whether you can get as tourist visa from the Philippines? I know that they are VERY hard to get in some countries (high fraud countries- i dont know if this applies to the Philippines).

If you can visit him, you get married, return home, and then apply for the Cr1 visa (this avoids the AWA law which governs the K1 fiance visa, if your BF has any sexual or domestic abuse this can be grounds for denial). And the k1 requires that you have met in person once in the last two years.

You can not enter on a tourist visa, get married and intend to immigrate and adjust status- that is visa fraud, and you will be denied entry if found out and face a ban. AOS is only for people who decided to stay once out there (spontaneous decision).

When does he get out of prison? Your best option (maybe only option), is to wait until he is out- and he can visit you once in Philippines get married and file for cr1, or file for the K1 fiance visa on his return.

Also, it is harder to get approval whilst he is prison, but doable. You would need a lawyer.

Edit- there is a waiver that he could possibly get, which waives the requirement of meeting once in two years for the k1 visa, based on circumstances that he cant physically visit to you (i.e disability), and you cant visit him on a tourist visa, prison may be one of those grounds.