Will the I-601A provisional waiver help my undocumented husband from Mexico get a green card?

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Question:

I'm an American citizen, married to a Mexican man who crossed the U.S. border with the help of a "coyote" several years ago. We've been advised not to apply for a green card for him. The lawyer said that my husband would have to attend the final interview at a U.S. consulate in Mexico, where they might punish him for his years spent in the U.S. by refusing to let him come back for ten years. I guess things would have gone much better if he'd come to the U.S. legally, like on a visa. I don't want to pay the lawyer another consultation fee to check on this stateside waiver thing unless I know it's available to my husband even though he entered illegally. Is there a chance the new provisional waiver will help him?

Answer:

In fact, yours is exactly the type of situation that the provisional stateside waiver on Form I-601A -- due to go into effect on March 4, 2013 -- is meant to help with. As the lawyer told you, if your husband had entered the U.S. on a visa, his marriage to you (a U.S. citizen) would probably have allowed him to obtain a green card (lawful permanent residence) by now. He could have applied for it in the U.S., through a process known as adjustment of status.

But as someone who entered the U.S. without inspection, your husband is ineligible for adjustment of status. He will have no choice but to attend the personal interview required of all marriage-based green card applicants at a U.S. consulate in Mexico. And that can cause major trouble for anyone who has lived in the U.S. without legal status -- in particular, a ten-year bar on returning to the U.S. for anyone who spent more than a year in the U.S. unlawfully after the age of 18.

Applicants can apply for a waiver of this bar if they can show extreme hardship to a qualifying U.S. relative, but many decide -- as you and your husband apparently did -- that the risks of being denied the waiver request are too great, and that they shouldn't leave the U.S. to pursue the green card application. 

The "stateside" waiver doesn't save your husband from attending the consular interview, nor will it grant him any immediate status in the United States.

What it will do, however, may be quite beneficial. If your husband can show that his being denied a U.S. immigrant visa (the entry document that leads immediately to a green card) would cause you, as his U.S. citizen spouse, "extreme hardship," he can apply for a waiver of inadmissibility -- and do so BEFORE leaving the U.S., rather than as a followup to his consular interview. (Or, if he happens to have a U.S. citizen parent or parents, he can also or alternatively show that being denied the visa would cause extreme hardship to them.)

This process removes much of the uncertainty that you faced before. If the waiver is approved, and your husband is otherwise admissible to the U.S., leaving for the consular interview should be relatively safe, and lead quickly to legal status in the United States.

Of course, there may be factors in your case that only your lawyer knows, and immigration law is devilishly complicated. It would be well worth the consultation fee to see a lawyer, and perhaps hire him or her for help with the entire waiver and visa application process.

For details, please see Nolo’s update, “DHS Publishes Procedures for Green Card Applicants to Request Unlawful Presence Waiver,” as well as its articles on ” Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar” and ” How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar.”

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