H1B Visa Lawyer Blog
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- What is the purpose of this Parole in Place if there is already an established path to a Green Card for undocumented Spouses of U.S. Citizens? There is a path, but that path is inherently risky and lengthy. Spouses of U.S. citizens are considered ‘immediate relatives’ of U.S. citizens and as such are generally eligible for an immigrant visa to obtain a green card/become a lawful permanent resident. Spouses of U.S. citizens who did not enter the country with permission (meaning they did not have a lawful admission, they were not inspected, admitted or paroled) they entered without inspection (EWI) and as a result have a much more difficult path to take to obtain a green card/become a lawful permanent resident. Because they have not been ‘inspected and admitted’ or ‘inspected and paroled’ they cannot apply to adjust status from within the United States. They are required to depart the country and attend an immigrant visa interview at a Consulate or Embassy abroad. However, once they leave to go to the Consulate, they often trigger either the 3 or the 10-year bar on legally re-entering and would be prevented from returning to the U.S. for up to 10 years for those who were unlawfully present in the U.S. for more than 1 year. Spouses of U.S. citizens who fall into this category may apply for a waiver called a Form I-601A Wavier, Application for Provisional Unlawful Presence Waiver that will forgive the ‘unlawful presence’ if approved. They must be able to establish through a totality of the circumstances that their U.S. citizen spouse would suffer ‘extreme hardship’ if the two were separated for a long time. Spouses apply for this provisional waiver BEFORE leaving the United States because approval of the wavier is not guaranteed and leaving without it is entirely too risky. Moreover, the USCIS is currently taking over 41 months to adjudicate these I-601A waivers. If the I-601A Waiver is approved, the Spouse of the U.S. Citizen would then need to make arrangements abroad to appear at the Consulate or Embassy for their immigrant visa interview, and if successful, would return to the U.S. as a lawful permanent resident/green card holder.
In other words, Spouses of U.S. citizens that entered the U.S. unlawfully and remained here are not eligible to apply for adjustment of status because they have not been ‘inspected and admitted’ or ‘inspected and paroled’. They would need to make plans to depart the U.S. and appear at a Consulate abroad for the Immigrant Visa interview. Leaving the U.S. without an approved I-601A provisional waiver would subject the Spouse of the U.S. citizen to a 3- or 10-year bar from returning to the United States.