As immigration attorney and his team, we get many questions from couples where one is a United States citizen and the other is not. Usually, these couples think that all it takes is marriage to a United States citizen to fix all immigration problems. Unfortunately, there are many cases where marriage is just the first step towards gaining a green card. Generally speaking, if the non-citizen spouse entered the country lawfully, he or she can apply for “adjustment of status” and receive a green card without having to leave the United States. However, if the non-citizen spouse entered the United States without a visa, and has been in the United States for more than six months, the situation becomes much more difficult. In these types of cases, a waiver application may be necessary.
In a waiver application, the initial petition is filed in the United States, but the actual visa interview takes place in the non-citizen spouse’s home country. If the visa is initially denied (as it will be if the non-citizen spouse has more than six months of unlawful presence in the United States), a waiver application is then filed in the home country. The non-citizen spouse must show that not allowing him or her to return to the United States will cause an extreme hardship to the citizen spouse (or a citizen parent). If the waiver is granted, the non-citizen spouse will be able to return to the United States with a green card, and will be able to legally live and work in the United States. If the waiver is denied, the non-citizen spouse will have to appeal the denial while waiting in the home country or spend enough time outside the United States (usually 10 years) so that a waiver is no longer needed.
The waiver process is long and difficult, and it does not fix all problems. Not every case qualifies for a waiver. However, for many couples, the waiver process provides the only current path to legal residence in the United States and a future in this country together. If you would like to know more about the waiver process, and whether your case might qualify, please call us at (423) 402-0608 for a consultation.
Originally published October 2011