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Immigration Issues/Immigration through marriage

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Question
Hi Eileen,
I am currently in the US on a visa waiver from the UK spending time with my girlfriend of 6 months. This has been my 5th trip to the US in 15 months and the Immigration services at Newark airport have taken away my rights to travel under the visa waiver program. My girlfriend and I have been discussing seriously the possibility of getting married so that I can stay in the country with her. I love her very much and cant face the fact of having to stay in the UK as all attempts to gain a working sponsorship have failed. Can we get married and file for adjustment of status under the visa waiver program and can I stay in the country legally whilst this is happening?

Answer
Eileen Chun-Fruto, Los Angeles immigration attorney writes:

If the CPB agents "took away your rights to travel" under the visa waiver program, it must be that they think you mis-used your visa waiver probably by entering so often in the last 15 months.

If you and your girlfriend now marry and you file for adjustment of status, it is highly likely that you will have problems with your application for permanent residency.  

As for whether you can stay in the country legally while this is pending, I want to caution you that there has been recent caselaw suggesting that you may not.  

You can take your chances, but if you are later removed, you will then face quite a few years separated from your girlfriend - then wife, and probably need a waiver to re-enter.  (This is really opening up a Pandora's box).

This is as much a legal issue as it is a judgment call.  You should seek representation and find someone you trust.  It is not at all a straightforward case and I'd be misleading to tell you that I could give you any meaningful response via email.

I realize this is a lot of negative information to digest, but it's just the truth.  Better to know than be surprised.  However, I think you really need to find an attorney to consult with and then to represent you.

Good luck.

Eileen Chun-Fruto
www.fongandchun.com
http://www.superlawyers.com/california-southern/lawyer/Eileen-Chun-Fruto/e5bf6f7

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Eileen Chun-Fruto

Expertise

I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).

Experience

I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Organizations
Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

Education/Credentials
J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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