Green Card/Permanent Residency Visa for Illegal Aliens Married to US Citizens Through Exceptional Hardship Waiver
U.S. citizens married to illegal aliens (without papers) and those who entered the U.S. without inspection (EWIs) face significant hurdles before they can obtain a visa or green card for their illegal alien spouse. In addition to meeting the requirements that all other applicants must obtain, these cases have additional filing requirements. The following are some options to be considered for illegal aliens married to U.S. citizens.
Adjustment of Status Through Section 245i
245(I) permits those who previously filed a permanent residency or labor certification petition on or before April 30, 2001 to remain in the U.S. and seek adjustment of status even if the previous green card application is not approved. Upon marriage to a US citizen, the affected illegal alien will submit an immediate relative petition as well as an I-485 adjustment of status application, pay a fine and proceed with the green card process while remaining in the U.S. — [Section 245i overview]
I-601 U.S. Citizen Spouse Hardship Waiver
Illegal aliens, EWIs, and those subject to the 3/10 year bars may apply for a green card if married to a U.S. citizen through the hardship waiver process. The first step is to submit an I-130 immediate relative petition to an USCIS service center in the U.S. upon approval and NVC processing, the alien would apply to complete the green card process at a consulate in his or her native country. As part of that application, the illegal alien will submit an I-601 request for a hardship waiver along with extensive documentation and evidence. The alien is not permitted to complete the process while in the U.S. but must leave the country to do so.
The I-601 hardship waiver application requires the alien to prove that not permitting him to reenter the U.S. will result in extreme hardship to his or her U.S. citizen spouse. Extensive and detailed documentation is required to prove this requirement. Such evidence should include sworn statements from family members, friends and acquaintances, medical records, psychiatric/psychological records, school records, evidence of illness of family members, financial information and tax returns, letters from teachers, support letters from churches and community organizations, evidence of health and emotional problems that may result from the separation, and such other documentation. This waiver process may also be used for applications submitted by U.S. citizen parents on behalf of their illegal child as well as applications by permanent residents on behalf of their undocumented spouse or child. If approved, the green card application is granted and the alien is permitted to return to the U.S. to assume permanent residency or green card status.
Due to the extensive nature of the documentation required for this process, it is important to consult an immigration attorney familiar with the law in this area. Our immigration attorneys are competent and can assist with questions or filing the application. A recent ruling by the [Administrative Appeals Office (AAO)] should also provide some guidance for reparing the I-601 hardship waiver application.
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