If your spouse is applying for a marriage-based green card after being undocumented in the United States, you may face immigration challenges. However, many couples in this situation succeed. Understand how unlawful presence may impact your case, whether you may qualify for adjustment of status, what waivers may be required, and how careful legal planning can help prevent unnecessary delays or long separations.
Addressing Unlawful Presence and Reentry Bans
Staying in the U.S. without legal status can lead to what’s called “unlawful presence.” If someone leaves the country after being unlawfully present for more than 180 days, they may trigger a 3-year or 10-year bar from returning. In more serious cases, such as reentering the United States after certain prior immigration violations or removal orders, a permanent bar may apply. These bars generally become an issue when a person leaves the United States for consular processing and must obtain a visa before returning. However, a waiver may be available to overcome certain grounds of inadmissibility and allow the green card process to continue.
It is important to distinguish between being undocumented and how the person originally entered the United States. If your spouse was inspected and admitted or paroled into the United States, an unlawful period of stay does not necessarily prevent the spouse from applying for adjustment of status from within the United States. In many marriage-based cases involving a U.S. citizen spouse, a person who had a lawful entry may still be eligible to adjust status even if they later overstayed their authorized period of stay or worked without authorization. By contrast, a person who entered the United States without inspection or parole generally cannot adjust status through a standard marriage-based application and may need to pursue an immigrant visa through consular processing, potentially with a waiver depending on the circumstances.
I-601A Waiver of Inadmissibility
The I-601A Provisional Waiver is a helpful option for certain green card applicants who are required to complete consular processing and have accrued unlawful presence in the United States. It allows an eligible applicant to seek a provisional waiver of the unlawful-presence ground of inadmissibility before leaving the United States for the immigrant visa interview. To qualify, the applicant generally needs an approved I-130 petition and must demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse or parent would experience extreme hardship if the waiver were not granted. The I-601A does not provide lawful status or guarantee that the immigrant visa will be approved.
Not Every Waiver Addresses Every Immigration Problem
It is also important to understand that immigration waivers are issue-specific. A waiver that addresses unlawful presence does not automatically waive other possible grounds of inadmissibility. Depending on the facts of the case, a person may face additional issues involving prior immigration violations, fraud or misrepresentation, certain criminal offenses, prior removal or unlawful reentry, or other grounds of inadmissibility. Different waivers may have different eligibility requirements, and some grounds may not be waivable at all. For this reason, determining which waiver, if any, is needed requires a review of the person’s complete immigration history before leaving the United States.
Policy Differences: Past vs. Present
Immigration waivers are handled differently now. Before, it was easier to get approval if you showed hardship. Now, the process is stricter. If you need help with a waiver because of time spent in the U.S. without legal status, we are here to guide you and help you through it.
Giselle M. Rodriguez is a Boston immigration lawyer who helps clients with marriage visas, fiance(e) visas (K-1 visas), and other family-based immigration options. Giselle is bilingual, speaking English & Spanish. Contact Giselle today to discuss your case.
Note: the information on this page is for educational purposes only, and does not constitute legal advice or an attorney-client relationship.