Does the manner of entry in the United States matter when I’m applying for a green card?
Yes. When you are submitting a petition for a spouse here in the U.S. that does not have immigration status, the way that your spouse entered the United States is extremely important. If you are a U.S. citizen and your spouse entered the U.S. lawfully with a visa and then overstayed, then there is an automatic waiver—something similar to forgiveness or a pardon—for any time that your spouse has been here in the United States without lawful status or anytime your spouse has worked without authorization.
However, if your spouse crossed the border (known as entering without inspection) then you do not get this automatic waiver. In some cases, however, you might be able to apply for a 601A provisional waiver. In this application, your spouse will have to show that you—the U.S. citizen spouse—will suffer if your spouse does not get a green card.
What factors are considered by USCIS in reviewing these waiver applications?
There are many ways to present a strong 601A waiver case, and there are some factors that the USCIS considers particularly strong and they should be highlighted if they apply:
·The U.S. citizen spouse previously obtained legal permanent residence through asylum, a T visa, or as an Iraqi/Afghani Special Immigrant, and the applicant is from the same country: Because of the nature in which the qualifying relative initially obtained residence in the United States, it likely would be highly dangerous for them to relocate with you back to that country of origin, and likewise, it would not be safe for them to travel to visit you.
The U.S. citizen has a disability or is in charge of a family member who has a disability: In such a situation where the care of a person with a disability would be compromised, the USCIS would find this to be a significant factor weighing in favor of granting a 601A waiver.
The U.S. citizen is currently in military service: Due to the inherent stresses of military service, the denial of permanent residence would likely be found to exacerbate those stressors.
Department of State Travel Warnings: In situations where the Department of State has advised U.S. citizen not to travel due to dangers, the USCIS will find this a particularly significant factor in granting a 601A waiver due to the dangers which the U.S. citizen could face in relocating.
Displacement of Care of Applicant’s Children: The USCIS also weighs heavily the affect displacement will have on a child’s care in determining whether or not to grant a 601A waiver.
These are just some of the cited factors that are particularly significant, but many other factors can be part of a successful 601A application. Read our related blog post on how to prove Extreme Hardship for immigration waivers. Please contact us for a consultation if you have any questions. We are here to help. Follow us on Instagram, Twitter, Facebook, LinkedIn, and on Tumblr for up-to-date immigration news.
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