We have had several United States Citizens come to our Bronx office asking for help in obtaining a Green Card for their non U.S. citizen spouse.  In order to obtain Lawful Permanent Status (Green Card) the petitioner and beneficiary need to file the

I - 130 and the I - 485 concurrently.  However, before our staff files these applications, the first thing we have to determine is whether the non-U.S. citizen is currently in the United States and if so whether they entered legally (inspected at the boarder) and did not overstay.  

Illegal Entry
 
Any one who entered the U.S. without first being inspected (EWI) by an officer of the U.S. border patrol is considered to have entered the U.S. illegally. 
 
People who enter the U.S. without being “inspected” by a U.S. immigration officer are generally not able to obtain permanent residence—green cards—while in the U.S. Instead, they must leave the U.S. and complete the processing of their green card applications at a U.S. consulate abroad.
 
In 1996, a change to the immigration law created the “unlawful presence bars.” Under the unlawful presence bars, people who have been in the U.S. without permission for six months are barred from reentering the U.S. for 3 years once they leave the United States. Additionally, anyone who has been in the U.S. without permission for 1 year or more is barred from reentering the country for 10 years, unless the person is granted a waiver.
 
Waivers of the 3- or 10-year unlawful presence bars are available only to people who can show that certain members of their family would suffer “extreme hardship” should they be denied reentry into the U.S. In 2013, a new DHS rule no longer required the petitioner to leave the United States and apply at their local consulate.  This eliminated this risk of Bronx families being separated from their U.S. citizen family members. The NEW rule changes the processing of reentry bar waiver by allowing qualifying people to apply for a “provisional waiver” BEFORE departing the U.S. People whose provisional waiver applications are approved would then be able to travel abroad knowing that a waiver will be granted, reducing the risk they would be denied reentry. The new process also will reduce the time that such people spend abroad apart from their families, since a time-consuming part of the green card process will already have been completed before they leave the U.S.
 
Why an applicant needs an attorney when filing for the waiver.
 
Applying for a green card through this new process will require the person to submit forms and paperwork at three different stages:
 
(1) the immediate relative petition stage;
(2) the waiver application stage; and
(3) the consular processing stage, which includes an interview.
 
While each case is different, the waiver application will be the most complicated part of the process for most applicants. Proving that a family member will suffer “extreme hardship” is a challenging task that involves a thorough review of that family’s financial, medical, and mental-health states and histories. Our Bronx Immigration attorneys have the experience that you need and will assess whether there are any other issues that might prevent you from being able to return to the U.S. if you use this process to apply for a green card.