Thursday, February 25, 2016

Residency through marriage to a U.S. Citizen

I am currently in the U.S. and am undocumented, and I recently married a US citizen.  Can I become a legal permanent resident and get my green card?

First of all, congratulations on your marriage.  To get your residency based on marriage, your spouse needs to file a Petition, and you need to file an application to become a permanent resident.  The steps you need to take depend on how you entered the country. 

I entered without inspection (illegal entry).   

If you entered without being inspected, you need to leave the United States and return to your country of citizenship in order to become a resident.   A big problem with this is that if you have been present in the U.S. for one year or more, you trigger a 10 year bar and you cannot return to the U.S. for 10 years.  If you have been in the U.S. for more than 180 days but less than one year, you trigger a 3 year bar.   (This will not apply to you if you are 18 or under.  Call us for a consultation if you recently turned 18.)  The bars do not apply if you have been here less than 180 days.  Contact us for more information.

I do not want to be barred from returning.  So what are my options? 

There are 3 ways that you will not trigger the bar:  You are under 18, the 245I waiver of unlawful presence, or the I-601 waiver (extreme hardship waiver).

You are under 18, or recently turned 18.  Call our office for more information.

245I waiver:  Did someone file a petition for you before April 30, 2001? If so, you may qualify for a waiver under section 245(i) of the immigration code.  This will allow you to become a resident without leaving the U.S. through a process known as Adjustment of Status.  Contact our office for more information.

You may also qualify for a 245I waiver if a petition was filed for your parent before April 31, 2001.  You may also qualify if you were married to someone when their petition was filed and the petition was filed prior to April 31, 2001.  Contact our office for more information and to learn about the requirements.

Hardship waiver, I-601:  If you have a qualifying relative that will suffer an extreme hardship if you leave the country, you may qualify for a waiver of unlawful presence.  You still need to leave the country, but you will not be barred from returning.   The person who suffers the hardship must be a U.S. citizen parent or spouse.  Recent changes to the law also allow the person to be a parent or spouse who is a Legal Permanent Resident.
The hardship must be extreme, and cannot just be a financial hardship.  Contact our office for more information. 

I entered with a visa.

If you entered with a valid visa, you will probably be able to become a resident without leaving the U.S.  There are some exceptions, such as a crewmen visa or a J visa.  Contact our office for more information.