Here is the problem, when your wife was young her parents brought her to the Untied States Illegally. She has lived here most of her life, paid her taxes and never had any trouble with the law. It should be simple, you are a U.S. citizen, file for her “green card” and she becomes a citizen right? Wrong! The law requires that in order to get the “green card” your wife had to enter the United States with permission and be inspected.
Okay that stinks, but the law is the law, so the two of you will just go to her country file for her “green card” there. Not so fast, what are you going to do about the 10 year bar, as she was in the United States unlawfully for more than 1 year. Wait a minute you mean that I cannot file for her green card here, and I can’t file for her “green card” overseas for ten years, what can I do?
You need help, someone who has been there before and helped families stay together. But before that you need to know what you are up against. If your wife has resided unlawfully in the U.S. for an un interrupted period of more than 180 days but less than 1 year and then voluntarily left, without being put in removal proceedings (deportation), she cannot come back to the U.S. for a period of 3 years from the date of departure (INA 212(a)(9)(B)(i)(I)).
If she resided unlawfully in the U.S. for an uninterrupted period of one year or more, then left the United States, she is inadmissible to the U.S. for a period of 10 years from the date she left (INA 212(a)(9)(B)(i)(II)).
Unlawful presence includes any time, your wife, spent in the U.S. after April 1, 1997, following entry without inspection or parole, unless she meets one of the narrow exceptions.
Waiver for Unlawful Presence – INA 212(a)(9)(B)(v)
The waiver may be granted for your wife if we can establishes that:
- refusal of admission to the U.S. would result in extreme hardship to a you and
- a waiver is warranted as a matter of discretion.
** Important** If your wife left the United States, after living here as an adult for more than one year, and came back illegally or
Came back illegally after being removed (deported)
She is not eligible for this waiver until she has spent at least 10 years outside the United States from her last departure.
Some of the factors USCIS looks at to determine extreme hardship are:
- the presence of a lawful permanent resident or United States citizen spouse or parent in this country;
- the qualifying relative’s family ties outside the United States;
- the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries;
- the financial impact of departure from this country; and
- significant conditions of health, particularly when tied to an unavailability of suitable
- medical care in the country to which the qualifying relative would relocate.
If we can prove the extreme hardship then we need to prove that your wife’s application should be approved as a matter of discretion. Some of the factors for this are:
Some of the favorable factors found in case law are:
- Family ties in the United States and the closeness of the underlying relationship
- Unusual hardship to the applicant or to the lawful permanent resident or United States citizens, or relatives and employers
- Evidence of reformation and rehabilitation
- Length of lawful residence in the United States and status held during that residence (particularly where the alien began his or her residency at young age)
- Evidence of respect for law and order, good moral character, and intent to hold family responsibilities (such as affidavits from family, friends, and responsible community representatives)
- Considerable passage of time since deportation or removal
- Deportation or removal for less serious reasons
- Absence of significant undesirable or negative factors
- Eligibility for waiver of other exclusionary grounds
Where do you go from here. Now you get more information. Meet with an attorney to determine if your wife is likely to get the waiver. Ask this question before starting the immigration process. These cases are very complicated. You need someone who has been there and will tell you both the good and the bad of your case.