t is an all too common situation: after the U.S. citizen or permanent resident relative petition is approved, the alien still faces several grounds of inadmissibility or removabilty that preclude him or her to adjust status or to consular process and become a US Permanent Resident. Most often, it is the alien’s prior unlawful presence in the US that triggers the three or ten year bans to reentry introduced by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).
However, several grounds of inadmissibility may be waived, often at the discretion of USCIS. You should be mindful of this possibility, both if you are applying for an immigrant, nonimmigrant visas, or if you are suddenly facing removal proceedings. One of the areas in which the scenario is most often encountered is when an alien enters the U.S. without proper documents and then marries a U.S. citizen. This alien is an immediate relative of a US citizen and as such will be granted an immigrant visa petition filed on his or her behalf by the U.S. citizen spouse. However, because of his illegal entry, as of the date of this writing the alien will not be allowed to adjust status from the U.S. and will be forced to apply in person at the U.S. consulate in the country of his last residence abroad.
The travel to the place of last foreign residence in turn will trigger the so call 3- and 10-year bans to re-entry if the alien was unlawfully present in the U.S. for more than 6 months or 1 year respectively. These draconian provisions, which apply to the vast majority of undocumented, can sometime be waived by a showing of EXTREME HARDSHIP to the U.S. citizen spouse. The threshold is high but not unsurmountable, and we invite all of our client to weight this possible alternative. Feel free to drop us an email if you think this may apply to you.
Even if you are unable to adjust status and unwilling to apply for a waiver of inadmissiblity, we urge you to stay informed for possible Legalization Programs, Guest Workers Programs, or other forms of legislative relief that may be enacted in the future. If you think you qualify for an immigrant or nonimmigrant waiver, please do not hesitate to schedule a consultation.