Niles Lang

An applicant who marries an American citizen but enters the US without either parole or a visa and was thus “inspected” is not eligible to “Adjust Status” in the United States. Instead, s/he must return to his/her home country for the green card interview. (One exception to this rule is the spouse and step children of Military Personnel). The applicant who enters illegally accrues unlawful status upon his or her arrival. Upon accumulating 180 days of unlawful status the applicant becomes subject to time bars against admission into the United States…and will thus have to remain abroad for the duration of the bar of either three years or up to ten years – unless s/he obtains the Unlawful Presence Waiver.

 

This waiver allows the successful bearer to proceed to the interview abroad with a degree of comfort and certainty should there be no other questions of fraud or criminal past for the applicant.

 

To obtain this waiver the applicant must demonstrate extreme and UNUSUAL hardship to the American Spouse. Thus, one who has been married for a longer time has an advantage over one who has been married a shorter time and one married a longer time can often more readily demonstrate mutual reliance and thus hardship. In addition, whoever may have children with the American citizen spouse, a house in both names, a business in both names or whoever may rely disproportionately on the alien spouse for economic/emotional/psychological support will have advantages over those without these favorable factors.

 

In short, one must demonstrate extreme hardship to the American spouse in the event of a ten-year separation. This hardship MUST BE UNUSUAL to qualify for the favorable finding and granting of the Unlawful Presence Waiver.

 

It is conceivable for one with such a Waiver to return from the interview to the United States in a matter of five to ten days. One must allow for the medical exam processing as well as typical consular processing of at least two to three additional business days.