A foreigner who entered the U.S. illegally without inspection by a US border agent cannot obtain a Green Card while remaining in the US.

Allan

At some point the foreigner must depart the US and return on a proper visa, such as a K1 Fiance Visa or CR Marriage Visa if hoping to get a Green Card. However, there are exceptions.

Exceptions to the General Rule

1. A family member filed immigration papers for the foreigner prior to April 2001
2. The foreigner is the victim of a crime or has been abused by a U.S. citizen spouse
3. The U.S. citizen is a member of the U.S. military (read Parole in Place)
4. The foreigner is eligible for political asylum or refugee status
5. The foreigner is in removal (deportation) proceedings, removal can be cancelled in some cases

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If you believe you meet one of the exceptions, please call us for further assistance.

Other Situations and Opportunities

1. Deferred Action for Childhood Arrivals (DACA)

Please note there are some benefits available for DREAM Act children who entered the U.S. under the age of 16 years and the date of entry was prior to June 16, 2007. See also DACA Requirements.

2. Lawful Entry

In some cases, the foreigner did not necessarily enter the US illegally. If the entry was legal, then the foreigner can normally remain in the U.S. and pursue a green card based on marriage to a U.S. citizen.

Allan

Example: It has happened where the foreign child was sleeping in a car and a border agent allowed entry. So long as the child passed through inspection, then we can try and pursue green card processing stateside, without the need to return the foreigner home to reenter legally. If this is your situation, please contact us for further assistance.

Barred From the US (3 and 10 Year Bars)

If the foreigner has been in the U.S. illegally for more than 180 days after his 18th birthday, then when he departs the U.S. he will be barred from returning here for a period of time, married or not.

• Unlawful presence of more than 180 days but less than one year results in a 3 year bar
• Unlawful presence of one year or longer results in a 10 year bar from the U.S.

Remember that the bar is triggered upon departure from the U.S., so if the foreigner is in the US and has not yet departed, it is best to call us for further assistance before departing the U.S. If barred, our goal will be to try to have the bar set aside and bring the foreigner back to the U.S. legally to obtain a U.S. permanent resident green card based on marriage. We also look to take advantage of any new laws that might benefit him during case processing.

3. I-601 Bar Waiver

If the foreigner leaves the U.S. for any reason and is barred from coming back, then the only way to set the bar aside would be to show that the U.S. citizen (or green card holder) cannot reside together as husband and wife outside the U.S. The foreigner is barred from the U.S. but the U.S. spouse is not barred from moving outside the U.S.

A 601 Bar Waiver is possible if the U.S. citizen (or green card holder) is unable to reside outside the U.S. due to a serious and permanent medical condition or some other combination of serious hardships that are unique to your situation and not common to all. Taken as a whole, any problems must stand out above everyone else. You must be worthy of a bar waiver because there is no other reasonable way to be together outside the U.S. The large majority of all bar waiver petitions are denied.

In my law practice, I’ve successfully obtained bar waivers for virtually all clients that needed one.

Allan

(A bar waiver may also be possible if the parent of the foreigner will suffer extreme hardship. The parent must be a U.S. citizen or green card holder.)

4. I-601A Provisional Waiver

There is an Obama Administration policy change which allows us to preprocess on a bar waiver prior to departing the U.S. The I-601A bar waiver process is a huge advantage for foreigners who have unlawful presence in the U.S. since the waiver process allows us to obtain a waiver before the foreigner must attend a consulate interview in the foreigner’s home country. If the bar waiver is approved in advance before departing the U.S., this greatly increases the chance of obtaining a fiance or spousal visa and returning to the U.S. lawfully.

The I-601A bar waiver is not currently available if the foreigner has committed crimes or obtained an immigration benefit through misrepresentation. The hardships required are the same as those noted above for a I-601 bar waiver.

If you do not fit into one of the exceptions noted above, then a choice may be to wait to see if laws are changed to benefit undocumented foreigners living in the U.S.

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Call for Assistance — As you hear more about any changes in law, you are welcome to contact us and explain your situation. I will see what can be done for you.

2014 Immigration Reform Pending

There has been some discussion in the U.S. Congress lately regarding amnesty for those in the U.S. as of December 2011, but no law has been passed. There will be a lot of debate in Congress before any comprehensive immigration reform is enacted into law. Whatever does become law may not be what you hope. In this situation, you should take advantage of any opportunities available now.