The short answer to this question is yes! If your spouse is undocumented or out of status, there are steps that you can take that will allow him or her to become a Lawful Permanent Resident Green Card holder. This article gives a brief overview of the qualifications that your spouse must meet and the hurdles that must be overcome to accomplish this goal.
Bars to Adjustment of Status
The ideal marriage based green card situation involves the immigrant spouse applying for adjustment of status at the time that the I-130 petition for an alien spouse is submitted to the United States Citizenship and Immigration Services(USCIS). This can only be done if the beneficiary spouse does not have any bars to adjusting status. The most common barrier by far to adjusting status occurs when the beneficiary spouse is not in valid status in the United States. Not only does this rule out the possibility of adjusting status, but it will also make the beneficiary spouse inadmissible to the United States if they leave the United States and the unlawful presence was for over six months. Over six months of unlawful presence will result in a 3-year ban on entering the United States, while a twelve month period of unlawful presence will result in a 10-year ban.
What can be done?
In order to be able to obtain a conditional marriage based green card, the immigrant spouse will have to file a successful waiver of inadmissibility. There is one scenario that arises that prevents beneficiaries from having the ability to obtain a waiver. This scenario involves a person who has accumulated unlawful presence for more than one year who leaves the US then reenters without being inspected at the border. The person in this type of scenario will be ineligible to apply for a waiver for a period of 10 years. If 1) this scenario is not present and 2) there are no other grounds to inadmissibility other than unlawful presence, the beneficiary spouse will have the opportunity to file a waiver of inadmissibility while remaining in the United States. The waiver that will be sought in this scenario is the 601-A waiver, also commonly referred to as the provisional waiver.
The 601-A Provisional Waiver Process–Overview
The process for seeking a provisional waiver for a spouse begins with filing the form I-130 with USCIS. After filing the I-130 you can typically expect a response within 3-12 months. Approximately one month after approval of the I-130, you will be able to pay the bill from the National Visa Center(NVC). Afterwards, you file the 601-A provisional waiver which will take around 5 months to be adjudicated. In the meantime, while the 601-A is pending, the beneficiary spouse will go through NVC processing which will usually take between 2-5 months. If the 601-A is approved, a consular interview will be scheduled which may take up to 4 months after the approval. The beneficiary will then travel to the consular post abroad for the interview, obtain the immigrant visa, then travel to the United States to join their spouse.
The Standard of Proof—Extreme Hardship
In order to obtain a 601-A waiver, it must be proven that the petitioning LPR or US Citizen spouse will suffer extreme hardship if their foreign national spouse will not be able to immigrate to the United States. While extreme hardship is not a fixed term, it generally means that the petitioning spouse will suffer “greater than normal hardship” than would be expected in a situation where their spouse would be unable to immigrate. The waiver petition must address both 1) why it would be an extreme hardship to be separated from their spouse and 2) why it would be an extreme hardship to relocate to the foreign national spouse’s home country. There are a number of common hardships that are associated with separation that will not likely rise to the level of “extreme hardship.” Normal results of separation include financial difficulty and emotional distress. Relocation hardships such as living in a place with a higher crime rate, lower standard of living and not being able to speak the language are unlikely to be considered extreme.
Proving Extreme Hardship
There are many different types of evidence that are can be used to prove that the US citizen petitioner will experience extreme hardship if their spouse is not admitted into the country. When submitting evidence in an effort to meet the extreme hardship standard it is important to consider the credibility of the evidence and the interest or bias of the source of the evidence. There is no perfect type of evidence, but successful waiver packets combine many different types of evidence to improve the likelihood of success. Common types of evidence includes:
Evidence from Professionals and Experts:
Oftentimes persuasive evidence comes in the form of professional/expert testimony from physiatrists, counselors, doctors, accountants etc. These professionals are uniquely qualified to offer a professional opinion as to the difficulty that the US citizen spouse will endure in the event that their spouse is not granted the waiver. However, it is important to keep in mind that the adjudicator will oftentimes consider the professionals to be biased due to the fact that they were compensated by the party who is claiming the undue hardship.
Evidence from Disinterested Parties:
Another type of evidence that is commonly used consists of letters from disinterested parties such as employers, clergy, neighbors, landlords etc. who can speak to the distress that the US spouse may experience in the event that the couple cannot remain in the US. This type of testimony is oftentimes helpful because the disinterested parties will not be considered biased. The main problem with this type of evidence is that disinterested parties are oftentimes not willing to take the time and care that is necessary to create compelling and persuasive letters.
Evidence from Friends and Family:
Evidence from friends and family is useful because they oftentimes know the US citizen petitioner the best. Unfortunately, the fact that they are close to the petitioner makes their testimony biased.
Medical and Financial Records:
Official records are helpful in the sense that they are unbiased and neutral. Records however look to the past, while a successful waiver must convince the adjudicator that extreme hardship will occur in the future.
Photographs are helpful mainly because they humanize the parties and remind the adjudicator that their decision will affect the lives of real people. However, this type of evidence is rarely probative of the issue of extreme hardship.
Articles and Reports:
Articles and reports can be helpful to illustrate certain medical conditions or to provide background regarding the economic or social conditions in a foreign country. However, since this type of evidence does not specifically relate to the parties’ unique circumstances, it is best used as companion not primary evidence of extreme hardship.