Entry without Inspection and Waivers of Inadmisibility: FAQs

There are generally three options through which people are able to obtain legal status in the U.S.:

1). An employment petition ^[1];

2). A petition filed by an immediate family member ^[2]; or

3). A special petition such as political asylum ^[3] or cancellation of removal (deportation) ^[4].

However, in general, people will fall in one of four categories of eligibility:

1). People who entered the U.S. with a visa and are eligible to get their residency in the U.S. through a family petition (even if the visa has expired or the visa was not valid).

2). People who entered the U.S. without inspection or visa and are eligible to obtain residency through family or employment because they are 245(i) eligible. (see explanation of who is 245(i) eligible ^[5]).

3). People who entered the U.S. with a valid U.S. visa, with a current, un-expired I-94 (small white card issued at the time you entered the U.S., which tells you how long you are allowed to remain in the U.S.). 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 U.S. without inspection or persons that came with a visa and the visa has expired, may be eligible to apply for residency in the U.S., however, their adjustment of status petition may require a waiver. A waiver is a “pardon” ^[6]from the U.S. 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 U.S. These waivers are most commonly issued at a U.S. consulate abroad.

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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 his/her country of origin, as determined by the consulate (unless the person is 245(i) eligible, in which case he/she would be allowed to adjust status [I-485] inside the U.S. simultaneously with the I-130 approval). Afterwards, your spouse must appear for a visa interview at the U.S. consulate. At that time, the U.S. government will make a decision if he/she case requires a “waiver of inadmissibility” or not. A “waiver of inadmissibility” is a pardon that is requested if someone has been in the U.S. 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 U.S. 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 U.S.

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