Entry without Inspection and Waivers of Inadmisibility
- I entered the US without a visa (or without inspection), am I eligible to obtain residency in the US? Or what options do I have to legalize myself?
- I am a US citizen but my spouse entered without inspection, can I assist him/her in getting a green card?
1. I entered the US without a visa (or without inspection), am I eligible to obtain residency in the US? Or what options do I have to legalize myself?
There are generally 3 options through which people are able to obtain legal status in the US: 1). An employment petition; 2). A petition filed by an immediate family member; or 3). A special petition such as political asylum or cancellation of removal (deportation). However, in general, people will fall in one of 4 categories of eligibility:
1).People who entered the US with a visa and are eligible to get their residency in the US through a family petition (even if the visa has expired or the visa was not valid).
2). People who entered the US without inspection or visa and are eligible to obtain residency through family or employment because they are 245i eligible (see explanation below of who is 245i eligible).
3). People who came into the US with a valid US visa, with a current, un-expired I-94 (small white card issued at the time you entered the US, which tells you how long you are allowed to remain in the US). These persons are eligible to apply for any other category of visa. The visa approval will depend on the person meeting the specific qualifications required by the particular visa.
4). Persons who came into the US without inspection or persons that came with a visa and the visa has expired, may be eligible to apply for residency in the US, however, their adjustment of status petition may require a waiver. A waiver is a “pardon” from the US government that says that even though you have violated an immigration regulation you will be granted a green card under special circumstances. These waivers are generally granted to individuals with special family connections to the US. These waivers are most commonly issued at a US consulate abroad.
2. I am a US citizen but my spouse entered without inspection, can I assist him/her in getting a green card?
Yes. You may file an I-130 petition with the appropriate USCIS service center and upon approval you must file an I-864 affidavit of support with the national visa center and a DS-230 petition with either the national visa center or the consulate office as directed by the government. Your spouse must attend a medical examination appointment and a biometrics appointment in their country of origin, as determined by the consulate (unless the person is 245i eligible, in which case the person would be allowed to adjust status [I-485] inside the U.S. simultaneously with the I-130). Afterwards, your spouse must appear for a visa interview at the US consulate. At that time the US government will make a decision if their case requires a "waiver of inadmissibility" or not. A "waiver of inadmissibility" is a pardon that is requested if someone has been in the US illegally for more than 180 days or if they have violated other immigration rules like using false documents or some other unlawful method to enter the US. The waiver of inadmissibility application, form I-601 is presented to the consulate and the consulate will forward the application to a USCIS officer for adjudication. This generally takes 10 months (the range of time for this is 4 to 24 months). The application must demonstrate that the resident or citizen spouse would suffer extreme hardship if the alien or foreigner is not able to return to the US.
IMPORTANT NOTE ABOUT THIS DOCUMENT
The information contained in this document is general in nature and subject to change at any point in time. As such, it may not necessarily apply to all situations. Therefore, under no circumstance it should be construed as legal advice. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.
