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Can I get a Green Card if I marry a US Citizen? The toughness of section 245 of the Immigration and Nationality Act (INA)

By September 11, 2014January 10th, 2019No Comments

(Spanish translation coming soon)

There is this generalized belief among immigrants that, if they are in the country, in any status, and they are good people (paid their taxes, have been good parents, spouses, go to church, etc), and they marry a US citizen, then they are entitled to “get papers”, to use the common talk of many of the dozens of people I see every week for consultations.

They probably right in believing so. The belief probably emanates from their own sense of fairness. Unfortunately, the immigration laws, like many laws, do not match (and do very little to) that common, natural sense of fairness. Under he law, being in this country legally is a privilege and not a right. You are never “entitled” to be here, even if you marry a US Citizen.

So a person that has no crimes and is an honorable “non-citizen”, cannot adjust status even if they marry a US Citizen?

The answer is: it depends.

A critical piece of information we want to know here is how that immigrant came to the United States. If a person came to the US “without inspection” then, all of a sudden INA 245 options for that person dramatically shrink.

A pre-requisite in 245 is that you are an alien who “was inspected and admitted or paroled into the United States”. INA § 245(a). That whole previous sentence, for simplicity sake (don’t quote me this) means that you came through an airport or a port with some valid visa and, an agent of Customs and Border Patrol (CBP) let you in, or in immigration language, determined you were “admissible”. If you are one of those, chances are you can adjust status if you marry a US citizen. Even if you overstayed the terms of you visa, 9 out of 10 people can probably adjust, assuming they are not Osama Bin laden or belong to ISIS among other requirements.

What happens then if you came “without inspection” or like I like to say it, you just walked into the country. If you walked into the country, then we cannot adjust your status because you have not been “inspected and admitted or paroled”. If you are willing to go back to your country and re-enter to the US, then we might let you come in under a petition filed by your US citizen wife.

What’s the problem here? Two. First, no one wants to go back and risk not coming back in. Second, even those who would (one out of 100 probably) have been present in the US unlawfully for over 180 days. Being unlawfully in the US for 180 or more carries a penalty of 3 years to apply for admission. (If one year or more the penalty is 10 years). Most husbands and wives will not wait and find another partner!

The solution: a waiver of unlawful presence. But even this waiver will not fix the problem. No one will go back and risk not meeting the difficult requirements of a waiver of unlawful presence and not be able to come back. Thus, in March 4, 2013, the government approved what it called a “Provisional Unlawful presence Waiver” (PUPW). (See 8 C.F.R. 212.7(e)). A PUPW is basically a waiver in advance. You can obtain your waiver approved before you leave the US. This is as close as it gets in terms of guarantees of coming back. It is never a 100% assurance. Because you still need to meet all the other admissibility requirements of INA 212 and have your visa petition approved.

What do you need to get a waiver? Many things and, here is the key difference between someone that came legally to the US and is adjusting status and someone that walked. The latter needs to prove that the denial of the waiver would result in extreme hardship to the US citizen spouse.

Extreme hardship is a vague concept decided on a case-by-case basis. It would take a treatise to explain what it means exactly. But put simply, extreme hardship is that hardship that is more than the normal hardship one would suffer if it were denied papers (remaining in the darkness of no status) or for that matter, being deported. It is something extreme, usually—but not limited—to health related issues: Your relative has a medical condition and depends on you for care; Your relative has a sick family member and will be unable to care for that person without your support; Your relative is financially dependent on you and you will not be able to provide adequate support from abroad; You are the caregiver for your relative’s children and he or she cannot afford childcare in your absence; Your relative is experiencing clinical depression as a result of your immigration situation.

Having my office right above the consulate of Mexico offices, I am faced with many of those immigrants that need a waiver to adjust status; to their surprise, is not that simple. When you are trying to get immigration benefits, illness, and hardship are—unfortunately—good things. Notably when I ask potential clients: how is your spouses’ health? The answer is a quick Excellent! People take pride on being healthy and having healthy spouses and children. Ironically unhealthiness is an asset here and people only start feeling sick after I explain the requirements of a waiver.

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