Many clients have questions regarding a spouse who has entered without inspection. (Sometimes people refer to this as entering or crossing the border illegally.) Can a U.S. citizen petition for a spouse who has entered the U.S. without documents? The short answer is yes, but this type of case can be more complicated.
Generally someone who has entered the country without inspection cannot change or adjust their status within the United States. Instead they must leave the United States for a visa interview abroad. The departure from the United States triggers a 10 year prohibition to reentry if the individual has been unlawfully in the U.S. for a year or more. That 10 year bar can be waived by filing an I-601 or I-601A and demonstrating that the U.S. citizen or lawful resident spouse will suffer extreme hardship if the applicant cannot return to the U.S. If the waiver is approved, the applicant does not have to wait 10 years, but rather can return to the United States.
Grandfathered under 245(i)?
There are some exceptions to this rule. One relevant and important exception is where an applicant is “grandfathered” under former INA provision 245(i). If an individual has been the beneficiary of a previously filed petition that was submitted prior to April 30, 2001, then they may be grandfathered under former 245(i), which permitted applicants to pay a penalty to adjust their status in the United States. This can include situations where the individual was the child of someone who was the beneficiary of a petition. If grandfathered, the individual can adjust their status under a new petition filed by their spouse, without having to leave the country, by paying a $1000.00 penalty.
Thus our first question for a client who entered the U.S. without inspection is whether anyone (brother or sister, former employer, aunt or uncle, parent) has previously filed a petition for the client, or for the client’s parents while they were under 21. Even if the petition was never used (for example, the client “aged out” or the priority date never became current), the petition may allow that person to now adjust status based on a spousal petition. It may be worth asking family members if that is a possibility, as sometimes clients who entered the U.S. as children are not completely clear regarding their family immigration history.
Extreme Hardship Waiver
In the event the individual is not grandfathered, then they must waive their unlawful presence by filing an I-601 or I-601A application for a waiver in order to be permitted to return to the U.S. Now that same-sex marriage is recognized under federal law, an applicant may qualify for a waiver by demonstrating that their same-sex spouse will suffer hardship if the applicant cannot remain in the U.S.
An individual may qualify under the recent “provisional waiver” (I-601A) process that was implemented by Department of Homeland Security in March 2013. The procedure permits spouses of U.S. citizens to apply for a waiver of unlawful presence prior to departing the U.S. for consular interviews. The rule is meant to alleviate the hardship of long absences of family members who must leave the U.S. to complete their immigration process. It is available to individuals who are inadmissible for unlawful presence only, without any history of fraud, deportation orders, or crime-related bars. If granted, then the applicant need only return to their country for a short period to complete an interview and visa processing.
If not eligible for a provisional waiver, the individual may still be able to file for an I-601 hardship waiver after having a consular interview abroad. This would be necessary where the individual is inadmissible for some other ground in addition to unlawful presence, such as a past criminal history, deportation order, or fraud.
If the waiver is granted, then the applicant can return to the United States immediately, without waiting 10 years.
If you or your spouse entered the country unlawfully, it is very important to discuss your situation with an immigration attorney prior to making any decisions regarding your case. Feel free to contact our office for more information.