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Undocumented and Married to a U.S. Citizen: What Are Your Options?

January 15, 2016 | Posted In Immigration

Many illegal immigrants come to America to build a better life than the ones they had in their home countries.  In the U.S., there are more opportunities for jobs and financial success, education, freedom of religion, freedom of thought and ideology, and often, freedom of relationships. That being the case, it’s fairly common for an undocumented immigrant to move to the United States, begin this new life, and then meet and fall in love with a U.S. citizen and get married. 

In the past, an illegal immigrant, without valid entry into the United States, who married a U.S. citizen could apply for a green card after the marriage, provided the immigrant paid a fine. However, since 2001, the section of the Immigration Act that allowed this was not extended, forcing the undocumented person to remain an illegal immigrant in the country, even if he or she was married to a U.S. citizen.  The only option was for one to wait outside of the US while their waiver application was being processed.

In 2013, the option to apply for an I-601A, Provisional Waiver, became available for immigrants who were forced to remain undocumented despite their marriages to US citizens.

The waiver removes the burden of having to wait outside of the US and permits married immigrants to apply for legal permanent residence based on their spouses’ US citizen status. For immigrants who are unable to obtain green cards in the United States, an I-601A waiver grants them the opportunity to apply for immigration benefits by showing that their spouse would suffer an extreme hardship if they are not allowed a green card. 

What Counts as “Extreme Hardship?”

The phrase “extreme hardship” is used to describe any challenging situation made all the more difficult by one spouse not having citizenship or permanent residency status in the United States. Factors that contribute to extreme hardship can include any of the following:

  • Family ties for the U.S. citizen spouse to other members in the United States (for example, the citizen spouse’s family lives in New Jersey and he or she wants to remain close to them)
  • Length of time that the U.S. citizen spouse has lived in the country
  • Health of the U.S. citizen spouse
  • Financial status of the couple
  • Immigration history of the immigrant spouse
  • Country to which the immigrant spouse would be deported 

If any of these conditions for extreme hardship can be found and demonstrated, the married couple has a chance at obtaining legal status for the immigrant spouse. With an 601A waiver, the undocumented immigrant waits with his or her family in the United States and only returns to his or her home country for an interview at the U.S. Embassy there.

Once that interview is concluded, the immigrant can return to the United States and receive a green card. The reason for the return to his or her home country is because anyone who is not eligible to apply for a green card while in the United States due to having no valid entry, must leave the country to obtain an immigrant visa.  

If you are at risk of having your family separated due to your immigration status, contact the New Jersey immigration lawyers at Helmer, Conley, and Kasselman, PA, today for a consultation about your situation. We represent undocumented persons who need to apply for a green card and obtain resident status.

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