Q: How will Unlawful Presence Affect the green card process?

Q:   Dear SRW Border Lawyers,  I am a U.S. citizen born in New York. My husband was born in Guatemala and entered the United States without being inspected in 2001, and has never left the country since that time. We met in 2004 and were married in 2007. We have two children that were born in the U.S., a son, 3, and a daughter, 8. My husband would now like to pursue a green card. How will his illegal entry and lengthy presence in the country without any status affect his chance of getting a green card process?

A:   Thank you for your question. Based on the information you provided in your question, there are several issues that need to be addressed before your husband can proceed with applying for a green card.  While I cannot give you a complete detailed analysis of your options without learning more about your husband’s history, I can provide you with some general information that may be helpful.

First, since your husband last entered the U.S. without being properly inspected, he is ineligible to adjust his status to that of a green card holder from within the U.S. and would require an immigrant visa from a U.S. Consulate in Guatemala.  In order to apply for this immigrant visa, he would need to depart the U.S. and appear for his immigrant visa interview in Guatemala.  Unfortunately, since your husband has lived in the U.S without status for such a long period of time, when he departs the U.S., he would become subject to a (10) ten-year bar unlawful presence bar. The (10) ten-year unlawful presence bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more, who then depart the U.S. and are attempting to re-enter the U.S.  Thus, once he leaves the United States, his departure will trigger the bar and he will not be able to enter the country for ten (10) years without a waiver.

In order to overcome the unlawful presence bar, your husband will need an I-601 waiver. The waiver must establish that you and/or your children (all U.S. Citizens) will suffer “extreme hardship” if your husband is not able to reenter the country and/or you and the children were attempt to live with him in Guatemala until his unlawful presence bar expired. Extreme hardship can be demonstrated in many ways; however, evidence of mental health issues resulting from a loved ones inability to enter the U.S., such as depression and anxiety, is particularly effective.  For detailed information about the I-601 waiver process, please visit our I-601 waiver page

As far as the process to file, your husband would submit the I-601 waiver application to overcome his inadmissibility at his immigrant visa interview. The catch, however, is that the waiver is difficult to obtain, and loved ones are often separated for long periods of time while the waiver is adjudicated. Recently, the United States Citizenship and Immigration Service (“USCIS”) proposed a rule that may be applicable in your case, assuming that your husband’s only ground of inadmissibility is unlawful presence.  You may read more about this provisional hardship waiver process currently under consideration by clicking here (please note that this rule is not currently in effect). 

If your husband is denied his immigrant waiver at his immigrant visa interview, there may be little else that could be done in the near future for him to return to the U.S. Therefore, it is imperative that you immediately consult with an experienced immigration attorney to understand your options moving forward, the risks involved, and to discuss the merits of a possible extreme hardship waiver application.

Q: do the unlawful presence bars apply to me if I do not depart the U.S. after entering unlawfully?

A: No. Unlawful presence is only triggered upon departure from the U.S. For this reason, many individuals in the U.S. after EWI choose not to complete the immigrantion process, which requires departure and attendance at an interview at a U.S. Consulate abroad. 

Q: What are the consequences of an illegal entry into the U.S?

A: As a foreign national who entered the U.S. without inspection ("EWI"), you are subject to removal under the immigration law. You are also accumulating unlawful presence in the U.S. Individuals who have accumulated periods of unlawful presence and then depart the U.S. face bars to re-entry, the length of which depends on how long the individual was unlawfully present. If you were unlawfully present in the U.S. for a period of less than 180 days (6 months), then you do not face a bar to returning. If you were unlawfully present in the U.S. for a period greater than 180 days but less than one year before departing the U.S., you face a three (3) year bar. if you have been unlawfully present in the U.S. for a period of one (1) year or more and depart the country, you will face a ten (10) year bar.