Marriage Based Green Card with Unlawful Entry to the U.S.

You’re married to a U.S. citizen or Lawful Permanent Resident but your most recent entry to the U.S. was without inspection. You may still be eligible for a green card if you’re able to get an approved I-601A waiver.

Entry Without Inspection

An “unlawful entry” is when someone is not inspected nor admitted to the U.S. In most situations this means the person entered without going through customs. Usually you didn’t have a valid U.S. visa at the time of your entry. If this sounds like you and you married a U.S. citizen or lawful permanent resident, you are not eligible for the adjustment of status but may still be eligible for your green card.

I-601A, Application for Provisional Unlawful Presence Waiver

This waiver is available for those who have a qualifying relative that will suffer “extreme hardship” should the waiver not be approved. In other words, you must show that your relative will suffer extreme hardship if either you must leave your family in the U.S. while you live in your country of citizenship or if you must move your family to your country of citizenship to remain together.

Qualifying Relative
A qualifying relative is any of the following:
– U.S. citizen spouse or parent
– U.S. lawful permanent resident spouse or parent

Extreme Hardship
The most common ways to show “extreme hardship” is if your qualifying relative has a serious health condition that renders it nearly impossible for them to live without you or to receive care in a different country.

Other factors to be considered are finances, education, career, etc.

Children
You’ll notice that children are not qualifying relatives. However, if you have children with chronic illnesses or health conditions, there are ways to show that your spouse would suffer extreme hardship.

USCIS Discretion
The I-601A waivers are highly discretionary by USCIS. There are no explicit requirements or checklist in what constitutes “extreme hardship”. It is a balancing act that should be well thought out by the applicant and attorney, if one is hired.

The Process

If you’re eligible for the I-601A waiver, then you’ll first start with the I-130 Petition with USCIS. You’ll eventually apply for permanent residence through Consular Processing but before submitting the DS-260 application, you must first get this I-601A approved.

Once approved, you’ll continue with Consular Processing as any foreign national would, though you will remain in the U.S. until your embassy interview is scheduled.

Interview Abroad

This process does require you to interview abroad at a U.S. Embassy. This is why you must have the I-601A approved before submitting your immigrant visa application. If you depart the U.S. without an I-601A approval, you will likely be stuck outside the U.S. for several years if not forever, depending on your circumstances.

We understand how nerve wracking it can be to leave the U.S. with no guarantee you’ll be granted reentry. But getting the I-601A waiver is the hardest part of this journey. So long as you remain truthful and there are no other issues barring you from eligibility, you should be granted the immigrant visa after your Embassy interview.

Conclusion

The I-601A waiver is an amazing opportunity for individuals who entered the U.S. without inspection. It offers a pathway to permanent residence, which ultimately leads to naturalization. But this path is not easy and often takes several years. So we highly recommend an attorney to guide you throughout the process.

Attorney Andrea has successfully submitted I-601A waivers and has helped folks obtain their green cards after decades of being in the U.S. without lawful immigration status. Schedule a consultation today to see if you’re eligible for this process!