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How Does My Husband Become Legal?

By Vicki K. Anderson

July 2010

You married the love of your life. You plan to settle down and raise a family. There is only one problem – your husband entered the United States illegally and does not have valid immigration status. Neither of you wants to live with the fear that he may one day be deported. What can be done?

As a U.S. citizen, you can file a Form I-130, immediate relative petition, with the U.S. Citizenship and Immigration Services (“USCIS”) for your husband. The petition establishes that you are a U.S. citizen, that the two of you are legally married, and that you have a bona fide marriage.

After the petition is approved, the USCIS will forward the case to the National Visa Center (“NVC”). The NVC will begin processing your husband’s immigrant visa application. The first step once you have been contacted by the NVC is to pay the Affidavit of Support Fee and Immigrant Visa Fee. These two fees should be paid online. A few days after you pay the fees, you will need to go back online to print off the receipts and the document cover sheets. With the receipts and document cover sheets, you can submit all of the required forms and original documents to the NVC.

Once the NVC has all of the required forms and documents, the NVC will schedule your husband for an immigrant visa interview at the U.S. Embassy or Consulate in your husband’s home country. Under current law your husband cannot apply for U.S. permanent residence in the United States if he entered the U.S. without inspection, unless he had an immigrant visa petition (Form I-130, Form I-140, Form I-360 or Form I-526) or a labor certification application filed for him by April 30, 2001 and he was physically present in the U.S. on December 21, 2000. For most readers, that will not be the case. Thus, he will need to return to his home country and apply for an immigrant visa at the U.S. Embassy or Consulate there.

However, because he entered the U.S. without inspection and was almost certainly in the U.S. for more than 180 days, once he departs the U.S. to apply for the immigrant visa, he will be barred from reentering the U.S. This is called the unlawful presence bar. If he was unlawfully present for more than 180 days but less than one year, he will be barred from reentering the U.S. for three years. If he was unlawfully present for a year or more, he will be barred for ten years. When your husband attends his immigrant visa interview, the consular officer will find him inadmissible (i.e., ineligible for a visa) to the United States due to the unlawful presence bar.

It may be possible to obtain a waiver for this particular ground of inadmissibility. A Form I-601 will need to be filed with the consular officer. In addition, you will need to submit as much documentation as possible showing that you will suffer extreme hardship if (a) you have to move to his home country in order to be with him; and (b) you have to live without him in the U.S. Factors which affect the outcome of a waiver application include: your medical conditions or your children’s medical conditions and the availability of health care in your husband’s home country, language and cultural differences, child custody for children from a previous relationship, financial issues and the ability to find work while living abroad, your responsibility as a caregiver for other family members in the U.S., family ties abroad and in the U.S., safety concerns due to violence and crime in your husband’s home country, overall country conditions, psychological hardships to you or your children, and disruption to your career or education.

If the consular officer believes that you will suffer extreme hardship, he or she will recommend that the waiver be granted, and the waiver application will be forwarded to the USCIS for adjudication. The processing time for a waiver of inadmissibility varies from case to case and from consular post to consular post. If the USCIS grants the waiver, the immigrant visa will be issued. Your husband will be granted permanent residence upon his entry into the U.S. with the immigrant visa.

Please note that if your husband is inadmissible to the U.S. for other reasons besides the unlawful presence bar, a waiver may or may not be available. For example, if your husband was previously deported from the United States and then reentered the U.S. without inspection, there is no waiver available to him. If he departs the U.S., he will be barred from reentering the U.S. for ten years. He must spend those ten years outside the United States. Thus, it is a good idea to consult with an experienced immigration lawyer before commencing an immigration case.