Legal Question in Immigration Law in California

Legal Residence

In advance, thank you for all your assistance.

Next March '09 I'll be applying for my citizenship process (HOORAY!!!). I have been living with my boyfriend for ten years and we are planning to marry. Our concern is: should I wait until I become a citizen or should we get marry this year. If we marry this year I have to do a change of last name with USCIS and I believe it takes about more than a year to get a replacement resident card. If we marry next year by Sept. or Oct. '09 (hopefully this is the time I should have become a citizen) and fill out I130 for my husband, I don't want USCIS to think that we married just to legalize my husband, right after I became a citizen, we have one son together and my boyfriend shares legal/physical custody (court order) of his first child, who is 13-years old. Also, do you deal with expungement cases. My boyfriend had a DV case (misdemeanor) five years ago, he successfuly finished probation, community hours and paid fines. We were wondering will he get a better chance to be approved by reopening the DV case and applying for dismissal pursuant to penal code 1203.4. He came to the US ilegally in '89, so most likely he will return to Mexico for his immigration appointment. Thank you,


Asked on 7/15/08, 10:23 pm

3 Answers from Attorneys
Alice Yardum-Hunter Alice M. Yardum-Hunter, a Law Corp.

Re: Legal Residence

No government employee will think the marriage is phony after 10 years and a child together. Many people apply directly after securing US citizenship.

I leave expungements to dedicated criminal lawyers whose expertise includes such procedures. While immigration lawyers might do expungements, they are not the same as people who do nothing but criminal law. I like to stick to immigration as this area is complex enough, as is criminal law. Without more details, the assumption that expungement is needed could also be incorrect. It might not be necessary. I would recommend that it first be determined whether this is recommended (I'd need the criminal conviction statute code section for that) and go from there. If it is, then you should get this first before applying for permanent residence. If it's not then you could marry or wait. The good thing about marrying soon is that the longer the marriage, the more likely you show equities for the unlawful presence waiver, which resulted from illegal entry.

The benefit of waiting to marry is that you don't have to upgrade the petition filed with you as a permanent resident. It's an added extra step, not a big one, but it must be done if you marry while still a permanent resident. The benefits of a lengthier marriage being helpful negates the wait.

Every story has two sides and your story is complex.

Please do not act or not act based on the above advice. This is general and not case specific legal advice.

Feel free to email me directly for more details at [email protected].

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Answered on 7/15/08, 10:46 pm
Joshua Hale Hale Law Group

Re: Legal Residence

I would suggest waiting to marry until after you obtain Citizenship. This will save you from having to refile with USCIS.

I personally handle many 1203.4 petitions, and if he is eligible, he may want to consider having this expunged.

Congratulations on the completion of all your efforts to become a citizen. You should be very proud!

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Answered on 7/15/08, 11:17 pm
Amy Ghosh Law Offices of Amy Ghosh

Re: Legal Residence

I can help you with the expungement and immigration paperwork. Please contact me directly.

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Answered on 7/22/08, 10:24 pm


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