Marriage FAQ - Options for Undocumented Spouse of a Citizen/Permanent Resident

 

Those who entered without inspection are generally not eligible for adjustment of status. They are subject to the 3/10 year bar and are thus required to return to their native country for 3 or 10 years (depending on the length of the unlawful presence) before becoming eligible to enter or stay in the US legally. There are 3 ways that affected aliens may attempt to gain permanent residency.

• First, the alien may attempt to adjust his or her status through section 245(i) where he/she filed a green card petition or labor certification petition prior to April 30, 2001.
• Second, the alien's U.S. citizen spouse may make an I-130 green card petition on behalf of the alien. The I-130 petition itself is not a visa and does not permit the alien to remain in the U.S. Upon approval however, the alien may apply for a green card at the appropriate U.S. consulate in the alien's native country. As part of the application, the alien may submit a request for a waiver of the 3/10 year bar. The waiver application requires that the alien prove that absence from the U.S. will result in extreme hardship for the alien's U.S. citizen spouse and/or family.

Such hardship may be based on physical and psychological illnesses in the family, financial and economic stresses, and other similar circumstances. The waiver application will typically require extensive documentation and support that show extreme hardship to the U.S. citizen relative. Medical and psychological evaluations as well as documentation of the effect of such on the family will assist. The alien may also have to demonstrate good moral character. If the waiver application is approved, the alien will be granted permanent residency and may enter the U.S. without the application of the 3/10 year bar.

• The third alternative for undocumented aliens is for the alien to depart the U.S. and wait either 3 or 10 years and apply for a green card thereafter. This requires that the alien remain outside the U.S. with or without his or her family.