Green cards obtained through marriage to a U.S. citizen are a popular way to achieve permanent residency status in the United States. But what happens when the non-citizen spouse in the relationship did not enter the country lawfully? Is there any hope for star-crossed lovers in this situation?
Rumors abound on what, exactly, can and cannot be done for a non-citizen spouse. Any spouse who wants to obtain a green card and has been unlawfully present in the U.S. for over 6 months but less than 1 year is subject to a 3-year bar from the U.S. before they can return with proper documentation. For those who spent more than 1 year out of status, the punishment is an even steeper 10-year bar.
Let’s look at a simple example. Tony, a native of Guatemala, enters the U.S. in 2003 without a visa. He later meets and falls in love with Jessica, a U.S. citizen, and they marry in 2008. They eventually have two U.S. children together, who of course are U.S. citizens. Jessica can start the green card process by first filing a family petition (known as Form I-130) for Tony in the U.S. After the petition is approved, Tony would have to return to Guatemala for 10 years since he was unlawfully present in the U.S. for more than 1 year.
The only way to lift the 10-year bar is to apply for, and be granted, an I-601 waiver. Currently, that waiver can only be filed once Tony returns to Guatemala. For it to be granted, Tony must prove that the separation will result in “extreme hardship” to Jessica. Notably, extreme hardship towards children is not a factor for this specific waiver. Only extreme hardship to the U.S. citizen or green card holding spouse left behind is considered. In this scenario, if extreme hardship to Jessica is established, Tony’s waiver will be approved and he will be granted an Immigrant Visa to enter the U.S. lawfully. If the waiver is denied, Tony is stuck! He will have to remain in Guatemala for 10 years.
Fortunately, we anticipate that U.S. Citizenship and Immigration Services (USCIS) will be making the waiver process a bit easier. Instead of having to leave the U.S. to apply for the I-601 waiver, applicants will soon be able to file Form I-601 in the U.S. If approved, the applicant will only have to leave the U.S. temporarily to complete visa processing. If denied, the applicant must decide whether to remain in the U.S. in the hope that Congress and the President will enact a new amnesty law, or return to their native country to serve the 3 or 10-year bar.
Keep in mind, the “extreme hardship” standard for the waiver will remain the same- the change we anticipate is simply that the immigrant will no longer have to return to their home country before filing Form I-601. What constitutes extreme hardship will differ from case to case, and legal representation by an experienced immigration attorney in preparation of a hardship waiver is extremely encouraged.
The immigration attorneys at Livesay & Myers, P.C. have extensive experience with extreme hardship waivers. From our offices in Manassas and Fairfax, Virginia, we represent clients across the United States in extreme hardship waiver cases. If you or a loved one require legal assistance with an extreme hardship waiver or any other immigration law matter, contact us to schedule your initial consultation with an experienced immigration lawyer today.
Updated 10-18-12. Implementation of the new I-601 waiver will occur by the end of 2012. Check back here for more details as they become available.
Updated 1-2-13. Today, the Department of Homeland Security designated March 4, 2013 as the date on which “extreme hardship” waivers can be filed from the United States. This marks a significant step for immigrants who have been unlawfully present in the U.S. for more than 6 months, yet have certain immediate relatives who are U.S. citizens, to apply for and receive a provisional waiver in the U.S. before departing to complete visa processing abroad. In the past, the immigrant had to depart the U.S. to apply for the waiver and be separated from their loved ones for long periods of time. We welcome this change in policy and encourage those interested in applying to contact us to schedule a consultation with an experienced immigration attorney.
Updated 1-10-13. USCIS has created a helpful pamphlet for the new provisional waiver process, which can be viewed at this link.