1) QUESTION:

I came to the U.S. on an H-1b visa. I overstayed the time given to me on the I-94 Entry Document. I am now married to a U.S. citizen. Will my overstaying my I-94 keep me from being able to get a green card in the U.S.?

ANSWER:

A foreign national who is married to a U.S. citizen can file for a green card in the U.S. as long as in their last entry into the U.S. they presented themselves for inspection at a port of entry and were legally inspected and admitted or paroled into the U.S.

This section of the law forgives the fact that the foreign national has not maintained their legal status in the U.S. and forgives any unauthorized employment by the foreign national.

This means that even though you fell out of status, you are eligible to apply for a green card because you were legally admitted as an H-1B nonimmigrant and you are filing for the green card based on the fact that you are married to a U.S. citizen.

However, this section of the law does not forgive other grounds of inadmissibility, such as criminal convictions, misrepresentation, or being subject to the unlawful presence bar. So the foreign national must otherwise be eligible for admission as a permanent resident.

2) Question:

I came to the U.S when I was 3 years old. I am now 18. I am undocumented and was wondering if I can join the military? I'm pretty sure the answer is no. However I've met a couple of people who were in the same situation as me once and they are now residents. What can I do?

Answer:

Currently it is the policy of the U.S. military to only allow U.S. citizens and U.S. permanent residents to enlist in the military. There are a limited number of exceptions made where the foreign national has a rare skill so that it would be in the national interest to allow the person to enlist. However, officially these exceptions do not apply to undocumented foreign nationals.

Unofficially, some recruiters do allow undocumented foreign nationals to enlist either because the recruiter ignored the fact that they were undocumented or because the foreign national used fraudulent documents to enlist.

The immigration laws do allow for expedited naturalization for a foreign national that serves during a time of war, even if the foreign national is not a U.S. permanent resident. However the military often takes the stance that foreign national who lie to enlist should be dishonorably discharged and therefore are not eligible to naturalize. This results in mixed results with some foreign nationals receiving citizenship while others get deported, sometimes with other family members.

A bill was recently introduced in Congress that would permit illegally present immigrants to join the military and become permanent residents after five years, two of which must have been spent in active military service or four in the reserves. That bill has received bipartisan support so keep an eye out for movement on this proposed piece of legislation.