By Alexander Carl – Immigration Attorney, Bolour Immigration Group
firstname.lastname@example.org – (323) 857-0034
How can one who has been in the U.S. for 6 months or more without lawful status, is married to a U.S. citizen, and also entered the U.S. without being inspected, admitted or paroled, obtain permanent resident status on the basis of their marriage ? One avenue this foreign national is able to pursue, is filing a hardship waiver here in the U.S. The process requires the foreign national to have an approved I-130 (usually a non-issue if the marriage is bona fide). The foreign national then must demonstrate that his or her spouse, the U.S. citizen, will suffer extreme hardship upon separation from the foreign national (this would occur if the foreign national left for Mexico and was not allowed to return) OR if the spouse accompanies the foreign national to Mexico to reside their permanently.
If USCIS concludes that the record demonstrates extreme hardship to the U.S. citizen spouse in either scenario then, in most instances, the hardship waiver will be approved. I say “in most instances” because the waiver is discretionary. This means that despite a showing of extreme hardship to the U.S. citizen spouse an Officer is able to deny the waiver on discretionary grounds based upon a lack o positive equities or the like. In practice this is usually a non-issue, assuming the foreign national does not have a rap sheet of crimes etc.
If the hardship waiver is approved, the foreign national is then able to submit the necessary documents to the National Visa Center. What comes next is the scheduling of an Immigrant Interview at the U.S. Consulate in the foreign national’s home country. The foreign national then returns to his or her home country for the Immigrant Interview. Upon departure the foreign national will trigger a 3 or 10 year bar on account of the foreign national being in the U.S. without status for 6 months or more, or for a year or more. The approved hardship waiver, however, waives that ground of inadmissibility. So, assuming the marriage is bona fide, and there are no other grounds of inadmissibility (criminal grounds, etc) the Officer at the Consulate will approve the case. Upon approval, the foreign national is then able to enter the U.S. as an immigrant. The foreign national’s permanent resident card will be mailed to him or her in about two weeks.
Every case is unique and this article is not intended to be legal advice, and should not be taken as such. If you or anyone you know entered the U.S. without inspection but is now married to a U.S. citizen spouse, there may be avenues you can pursue to obtain permanent residency in the U.S. You should therefore contact an attorney about the specifics of your case.