You are a United States citizen but your spouse entered the country illegally. Can your spouse get a green card?

If You Don’t Qualify For A Provisional Waiver

Before the provisional unlawful presence waiver existed an undocumented immigrant, even the spouse of a U.S. citizen, who could not prove lawful entry, had to interview for their green card outside the U.S. in a process known as consular processing. However, a problem arises if the undocumented immigrant had unlawful presence in the United States long enough to invoke the 3 or 10 year bar to re-entry. In that case, the very act of leaving the United States for consular processing (which is required to get a green card) will trigger the 3 or 10 year bar to re-entry preventing your spouse from reentering the United States for 3 or 10 years. To get the bar to re-entry waived the immigrant had to apply for a waiver while outside the United States and wait several months for the application to be processed. Needless to say, several months of separation from their U.S. family and spouse creates a hardship for booth the immigrant seeking lawful status and their U.S. family. To shorten the period of separation for consular processing the I-601A waiver was created.

The Provisional Unlawful Presence Waiver

The I-601A waiver allows immediate relatives (spouse, parents) of U.S. citizens to receive a waiver of inadmissibility for unlawful presence before they leave the United States for consular processing abroad. The immediate relative can remain in the United States during the several months it takes USCIS to make a decision on the provisional waiver. Once approved the immediate relative can depart the United States for consular processing with more certainty that they can re-enter the U.S. after their immigrant visa interview.

Who Can Apply For The Provisional Waiver?

Many people do not qualify for the I-601A provisional waiver and must depart the United States and file a standard I-601 waiver. To file an I-601A provisional unlawful presence waiver you must satisfy the following requirements for eligibility:

1. You must be physically present in the United States
2. You must be at least 17 years old at the time of filing
3. Have an approved immigrant visa petition filed by your immediate relative
4. Have an immigrant visa case pending with the Department of State and have paid your immigrant visa processing fee
5. You must only be inadmissible to the United States due to unlawful presence and for no other reason

Do You Need An Attorney To File The Waiver?

No, but hiring an immigration attorney can avoid costly mistakes and delays. You need to determine how much several months of separation from your spouse is worth. Even excluding the emotional costs of being separated from your loved one for several months, the financial costs of supporting your loved one overseas for several months will exceed the one-time flat fee charged by an immigration attorney. To learn whether your spouse even qualifies for an I-601A unlawful presence waiver call immigration attorney Agxibel Barajas at (916) 800-1061 for a free consultation.