5 Paths to Legal Status for Undocumented Immigrants

The immediate relative category includes the spouse, parent and unmarried child (under age 21) of U.S. citizens. Provided the immediate relative had a lawful entry to the U.S., he or she may adjust status to permanent resident. In other words, an undocumented immediate relative may generally apply for a green card from inside the United States. The lawful entry is essential. The undocumented individual must have entered the United States with valid documentation and made face to face contact with a U.S. immigration officer and that officer acknowledged the person's entry to the U.S.

Therefore, an individual who overstays a visa and then marries a U.S. citizen may generally obtain a green card through adjustment of status. It doesn't matter if the visa overstay was only six months or six years; the undocumented immediate relative has the ability to apply for a green card.

If the immigrant's entry was not lawful or the immigrant's spouse is a permanent resident, the process gets more complicated. By law, if the foreign spouse and children entered the U.S. without inspection and remained in the U.S., they must leave the country and conclude their immigration process through U.S. consulates abroad to obtain the immigrant visa (green card). More importantly, if the immigrating spouse and/or children over 18 years of age resided in the U.S. unlawfully for at least 180 days (6 months), they could then be automatically barred from re-entry to the U.S. for 3 to 10 years once they leave they U.S.

In many cases these individuals can qualify and apply for a waiver of the 3- and 10-year bars if they can demonstrate that their absence from the U.S. would cause an “extreme and unusual hardship” to the U.S. citizen or lawful permanent resident spouse or parent. In the recent past, the waiver process required that the individual first travel out of the U.S. and apply from his or her country of origin. This was a costly, and very uncertain process that still risked keeping families apart of lengthy periods of waiver approvals or even worst, waiver denials and full exposure to the 3- or 10-year bars.

Fortunately, that process is a thing of the past. A “provisional” waiver is now available that can be applied for and obtained while the applicant is still in the United States. The provisional waiver offers individuals some level of certainty that, once approved, they will be able to return to the United States after a successful consular interview. The provisional waiver program covers the undocumented spouse and children of U.S. citizens.

The goal of the provisional waiver program is to maintain family unity. “Extreme and unusual hardships” can generally include: family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.

Applicants should remember that it must be a bona fide (real) marriage to the U.S. citizen and that all previous marriages must have been lawfully terminated. Marriage fraud (a fake marriage to get a green card) carries harsh penalties that could even result in a felony conviction for the U.S. citizen.

Prospective applicants should always speak to an experienced immigration attorney before applying for a provisional waiver (Form I-601A, Application for Provisional Unlawful Presence Waiver). Although it may seem like a fairly straightforward process, these waivers are highly technical and require careful and thorough legal analysis. Your answers on the application could have long-term implications to your immigration case.