Contrary to popular belief, undocumented immigrants who entered the US without inspection, or overstayed their visas, do not automatically gain US Citizenship when they marry or become engaged to an American citizen. One reason for this is the unlawful presence “Time Bar”. In the late 1990s, Congress decided to punish foreign-born people who spend time in the U.S. unlawfully without a visa, Green Card, or other official permission from the U.S. immigration authorities.
In doing so, Congress created a penalty that prevents undocumented aliens from returning to the U.S. for three (3) years or ten (10) years, depending on how long they stayed unlawfully in the country. In addition, if the immigrant spouse has a criminal record, overcoming the bars to admission may be even more difficult, if not impossible.
This exclusion from re-entering the United States is often referred to as the “time bar,” or the “three– and ten-year bars”.
I. WHAT ARE THE “TIME BARS”?
Three Year Bar: If you spent more than 180 continuous days (approximately six (6) months) in the U.S. unlawfully, but then left voluntarily, (before being caught and placed into removal proceedings), you could be barred from coming back to the US for three (3) years.
Ten Year Bar: If you spent more than one (1) continuous year in the U.S. unlawfully, and then left for whatever reason (including being deported), you could be barred from coming back for ten (10) years.
For example, if a person came to the United States and overstayed his or her visa by one year or more, or came to the US illegally years ago but never obtained lawful status, this person would not be eligible to adjust status within the United States, and would be barred from returning to the US for ten years.
II. A POSSIBLE SOLUTION
Since March 4, 2013, Green Card seekers who are not eligible to adjust status in the U.S. and are afraid to leave the country for consular processing because their past unlawful presence might block their return, have had the option to file a “provisional waiver” (or “stateside waiver”), application before leaving the US. Although this process may be a big hurdle for many people, a “waiver”, or “legal forgiveness”, is available in certain situations. Unfortunately, the process is very lengthy and, oftentimes, extremely complicated.
Because an immigrant subject to the time bars cannot adjust status within the US after marrying a US citizen, he or she must must apply from his or home country though the consular processing procedure. Since the immigrant would be barred from returning to the US after attending a consular interview abroad, he or she must first ask permission from USCIS to return to the United States after attending the interview abroad.
In order to ask for this permission, the immigrant would file a form I-601 and provide supporting evidence, otherwise known as an I-601 Application for Waiver of Grounds of Inadmissibility. A waiver can be granted if a qualifying relative of the immigrant spouse would suffer “extreme hardship” if the spouse is not admitted to the United States. A successful waiver would allow the immigrant spouse to remain despite his or her illegal entry into the United States.
III. HOW IT WORKS
In preparing an I-601 Application for Wavier, the burden is on the qualifying spouse to prove that he or she will experience “extreme” hardship if:
The immigrant spouse is not allowed to remain in the US and must return to his or her country without the US citizen spouse, AND
The qualifying spouse and minor children move with the immigrant spouse to the spouse’s country of origin.
This hardship must be shown to go above and beyond the hardship experienced by the average family if they were required to physically separate, and will often involve medical, financial, personal, and cultural obstacles.
It is important to note that the preparation of an I-601 Application will require an abundance of time and preparation. The assistance of a qualified immigration attorney may greatly reduce the amount of frustration involved by someone completely unfamiliar with this detailed and daunting process, and can provide the immigration officer with a comprehensive picture of the extreme hardship the US citizen spouse may suffer if his or her immigrant spouse must be removed to his or her home country.
IV. APPLICATION PROCEDURES
After speaking with an attorney to determine whether the immigrant spouse qualifies for the I-601 waiver, it is time to prepare evidence supporting the hardship that the US citizen spouse will ensure if (1) the immigrant spouse were to return to his or her home country without the US citizen spouse; and (2) the US citizen spouse were to move with the immigrant spouse to his or her home country.
The US citizen spouse should ask himself or herself the following questions in order to determine eligibility:
Medical Hardship
Do you have medical problems or a disability that your spouse helps you treat or manage?
Do you rely on your spouse to transport you to medical or psychological appointments, or act as your medical advocate?
Do you receive medical insurance through your spouse?
Do you receive medical care in the United States that is not available or adequate in the immigrant spouse’s country of origin?
What type of medical care or job opportunities would be available to you in your spouse’s home country?
Financial Hardship
Would you be able to maintain your current lifestyle without the financial contributions of your spouse?
Does your spouse care for the home and children, eliminating the need for costly childcare and housekeeping services?
Would you be able to find employment that suits your background in your spouse’s country of origin?
Personal Hardship
Do you have close relatives who would be adversely affected if you moved to your spouse’s country of origin?
Do you care for any ill orderly relatives nearby?
Do you read or speak the language of your spouse’s country of origin?
Educational Hardship
Are you, or do you soon plan to be, enrolled in a local education program?
Are educational opportunities available to you in your spouse’s country of origin? If not, how would your future earnings be impacted?
Other Hardship
Are there any additional factors that would contribute to your experience of extreme hardship?
VI. PREPARING A WINNING APPLICATION
Because the adjudication process for I-601 waiver applications is subjective depending on the immigration officer’s interpretation of your circumstances, you should provide as much evidence as possible to make a compelling and convincing case to the officer. You will want to humanize your story to connect with the officer on a personal level. Often, even a strong case is denied if the applicant prepares it himself or herself and fails to provide enough supporting evidence, or leaves out a strong cover letter that summarizes the evidence and hardship for the officer.
VII. DO YOU QUALIFY?
To find out if you qualify for the I-601 Waiver, and how to prepare an application, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form.
The Grady Firm has offices in Los Angeles, San Francisco, and San Diego, California, and its attorneys work remotely with clients from around the globe. We also specialize in helping foreign entrepreneurs establish viable businesses in the United States. Se habla español.
*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular case, as each case has its own set of circumstances and must be evaluated individually by licensed attorney.