Immigration Options For Spouses Of U.S. Citizens Or Permanent Residents

Are you or someone you love in need of legal status? While the specifics of the process vary greatly depending upon a variety of factors, most immigrants who are married to American citizens or permanent residents do have a pathway to legal status.

Adjustment of Status – If you entered with a visa or through the Visa Waiver Program (VWP), you may be eligible for adjustment of status (AOS). This process allows for application of permanent residency from within the United States. If your spouse is a U.S. citizen, you may qualify for AOS even if you have overstayed your visa for many years or have worked without authorization.

Some foreign nationals who had a family member file an immigration petition for themselves (or for one of their parents) prior to April 30, 2001, are also eligible for AOS even if they did not enter with a visa or have worked without authorization. This is a program known as 245i.

Stateside Provisional Waiver (I-601A) – If you are not eligible for AOS, there is another option for obtaining your green card. While this option does ultimately require you to leave the U.S. to process through the consulate, there are some built-in protections that will usually keep your time outside the U.S. to just a couple of weeks.

Anyone who has been in the U.S. for more than 6 months without legal status becomes subject to an unlawful presence bar upon departure from the United States. The bar requires the individual to remain outside the U.S. for 3 or 10 years (10 years if present without legal status for 1+ years) prior to applying for an immigrant visa, unless granted an unlawful presence waiver.

Under the traditional waiver process, individuals must first leave the U.S., apply for an immigrant visa at the consulate, and then submit a waiver application. He or she must then wait outside the U.S. until the waiver application is adjudicated (often a year or more). If the waiver is approved, the consulate will process the immigrant visa application. If denied, the applicant must remain outside the U.S. for the entire 3 or 10 year period.

If the only reason you are ineligible for AOS is that you failed to enter with a visa and have been in the U.S. without legal status, the stateside waiver process allows you to file a waiver application from within the U.S., and remain in the United States while USCIS adjudicates the application. If the provisional waiver is approved, the individual may then submit immigrant visa applications and schedule an interview at the consulate. So long as the consular official approves the immigrant visa application, the applicant will then re-enter the United States as a permanent resident.

To receive the waiver, you must prove that your U.S. citizen or permanent resident spouse (or parent) would experience extreme hardship if you were required to leave the U.S. for several years.

This may include financial, emotional, medical, education, employment, family ties, country conditions, and other factors.

Provisional 212 Waiver – If you would otherwise be eligible to apply for the stateside provisional waiver except for the fact that you have an order of removal, there are still options.

Prior to filing the I-601A, you must first have the prior removal order “waived” by submitting an application to USCIS. This is a discretionary waiver, so you must show that your positive factors outweigh negative factors. This waiver is primarily about you while the I-601A is primarily about your USC or LPR spouse.

Once the 212 waiver is approved, you are then eligible to apply for the stateside provisional waiver.

Traditional I-601 Waiver - Unfortunately, if you need a waiver for any other issues such as certain criminal convictions, immigration fraud, misrepresentation, etc. you will not be eligible for the stateside waiver process.

Although you are not completely without options, you would usually be required to leave the U.S. for a designated period of time (commonly 10 years) and then apply for the necessary waiver(s).


All of these procedures have strict eligibility and documentary requirements and are very fact-specific. To determine which option may be right for your situation, contact the Law Office of Kelli Y. Allen for a comprehensive consultation.

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