Entry without Inspection and Waivers of Inadmisibility: FAQs

1. I entered the U.S. without a visa (or without inspection), am I eligible to obtain residency in the U.S.? Or what options do I have to legalize myself?

There are generally 3 ways through which people can obtain legal status in the United States:

1. Through an employment-based petition;
2. Through an immediate family member’s petition; or
3. Through a special petition such as political asylum, cancellation of removal, etc.

However, most people will fall into one of 4 eligibility categories:

People who entered the United States with a visa, even if the visa has expired or was not valid, and who are eligible to obtain their residency in the U.S. through a family petition by an “Immediate Relative” (a U.S. citizen spouse, a U.S. citizen parent if you are under 21, or a U.S. citizen son or daughter over 21).

People who entered the U.S. without inspection or who have overstayed their permitted time under their legal status, and who are eligible to obtain residency through family or employment ties because they meet the requirements of Section 245(i) of the immigration law.

People who entered the U.S. with a valid U.S. visa or permit and who have maintained their legal status. These individuals are eligible to apply for any immigrant or non‑immigrant visa category. Approval of the change or adjustment of status will depend on your ability to meet the specific requirements demanded by the particular U.S. visa.

People who entered the U.S. without inspection, or people who entered with a visa that later expired, may be eligible to apply for residency in the United States; however, their residency petition will generally require a waiver. A waiver is a “forgiveness” granted by the U.S. government stating that, despite having violated an immigration regulation, a green card will be granted under special circumstances.

In general, these waivers require the person to demonstrate that they have a qualifying relative (with permanent residence or citizenship) or that they suffer from a serious condition requiring treatment available here in the United States. The most commonly used waiver applications are Forms I‑601, I‑601A, and I‑192.

2. I am a US citizen but my spouse entered without inspection, can I assist him/her in obtaining a green card?

Yes. A United States citizen may request a permanent resident card or green card for their spouse even if the spouse entered the United States without a visa. The I‑130 petition must be filed with the appropriate Immigration (USCIS) center. Once approved, an affidavit of support (I‑864) must be filed with the National Visa Center and the DS‑230 application with the National Visa Center or with the consulate as indicated by the government.
Your spouse must undergo the medical examinations required by the government and have their fingerprints taken (“biometrics”), as determined by the consulate (unless the person is eligible under Section 245(i), in which case they are allowed to adjust status (I‑485) within the United States, simultaneously with the I‑130).
After these examinations, your spouse must attend the visa interview at the U.S. consulate. There, the U.S. government will decide whether the case requires a waiver of inadmissibility. The waiver of inadmissibility is a pardon requested if a person has remained in the United States illegally for more than 180 days or has violated other immigration rules such as using false documents or another illegal method to enter the United States.
The application for the waiver of inadmissibility, Form I‑601, is submitted at the consulate and forwarded to a USCIS officer for adjudication. This generally takes 10 months (the time range varies from 4 to 24 months). This application must demonstrate that the permanent resident or U.S. citizen spouse would suffer extreme hardship if the foreign national is not allowed to return to the United States.