• The big difference between coming to the US illegally and entering legally but overstayed your visa
• The process you need to follow when you enter the US without inspection after April 2001; before this date section 245-I can be used to adjust status in US
• In 2013 a new waiver was introduced to allow to file a pardon if the only offence is an overstay

Raw Transcript:

Jacob: Hello everybody, welcome to another episode of Ask an Immigration Lawyer. This is your host Attorney Jacob Sapochnick.

We’re getting a lot, a lot of questions from our Facebook page, very good questions. This one is from Leslie and Leslie’s questions is she married a US citizen, she entered the country without a Visa, she came illegally. Both don’t have any children yet but the marriage is bonafide. Leslie is wondering how can she legalize herself, how can she get herself documents by marrying a US citizen but entering the country illegally.

That’s a great question Leslie. Often people don’t realize that there is a big difference between somebody who came here illegally or somebody that entered legally but then they overstayed their visa and then marry a US citizen. If you enter the US legally and then overstayed the process is much easier because when you marry a US citizen at the end of the day when you finish your adjustment of status you can file your paperwork inside United States and there’s no need to leave and the green card can be obtained inside the US.

But once you enter the US without inspection and if this happened after 2001, after April 2001, the process is the following: The US citizen spouse can file what is called a form I-130 which is an immigrant petition. That petition is going to take about six months or so to be approved. And once approved the file will be sent to the US National Visa Center for processing for an interview at the US Embassy. So people that entered illegally are not able to adjust their status in the United States, eventually they have to leave.

The problem is that before 2013 when people like that were leaving the country they were subject to a bar, a 10-year bar, because they overstayed and so it was very difficult to fight this bar while they’re waiting abroad. But in 2013 there was a new waiver called I-61A waiver that was introduced and that waiver will allow somebody like that to file for the pardon if the only offence they have is an overstay.
If the only offence they have is an overstay that means that this I-61A waiver will allow them to come back to United States after the interview overseas so they don’t have to be stuck over there for months and months at a time. So the I-61A waiver will help people that came here without a visa, marry a US citizen with the whole process, eventually left the country and this is great news.

So that’s one way to get the paperwork.

The other way is people that were in United States from before April 2001 there was a section 245-I that allows them to use those previous filings to adjust their status in United States if they have a qualified or [inaudible 00:03:24] that is able to help them.

So in a nutshell somebody who came here illegally is still able to obtain their documents but they will need to leave United States and process the application at the US Embassy abroad.

Hopefully this was helpful.

I just want to remind our listeners. On this podcast we answer questions as a service to our listeners but we don’t have any liability related to anything that we announce here.

We’re doing this as a service, the questions are not intended to establish an attorney-client relationship and you have to remember that immigration laws are always changing. Any information that I give you here should not be applied to any situation. You have to talk to an attorney before but I’m just, you know, we’re doing it as a service and hopefully the information you find here is useful but we have to provide this disclaimer.

Hopefully you continue to send us your questions and we’ll see you at our next episode. This is Jacob Sapochnick, you ask, we answer, simple.