Good News for Some Who Entered Without Inspection

Just a couple of days after my last posting on waivers, USCIS announced its intention to begin processing requests for waivers of unlawful presence in the United States for certain categories of immigrants.  Under the new rule, spouses of US citizens and children of US citizens who entered without inspection will be allowed to apply for a waiver of unlawful presence IN THE UNITED STATES, and if they are approved, travel home to simply pick up the visa.  This means no more waiting abroad for months while the waiver application is being adjudicated.

This is really good news for so many of you.  And when will this new rule take effect?  Homeland Security has already begun working on the logistics and has stated its intention to have the new system up and running by the end of the year.

So what exactly is this new rule? And who will it help?

Individuals who entered the US without inspection are barred from getting a Green Card in the US even if they are married to a US citizen or are the child of a US citizen.  Such individuals are required to travel home and apply for their visa at the Consul, but as soon as they leave the country they automatically trigger a 3 or 10 year bar against returning to the US, depending upon how long they have been here without status (this bar is known as the unlawful presence bar).  Thus, in a time consuming and cumbersome procedure, they are required to first apply for the visa at the Consul, get a denial,  and only then can they apply for a waiver of the unlawful presence bar.  And this entire process takes anything from 4-10 months, leaving families separated and frustrated.  No more.

Once this rule goes into effect, if you entered the country without inspection and then married a US citizen, you will be permitted to apply for the waiver before you leave, wait here while it is adjudicated, and then assuming it is approved, travel home briefly to pick up your visa.

It is important to note that this new rule does not change the standard for the waiver.  Applicants will still be required to show extreme hardship to either their US citizen spouse or a US citizen parent in order to qualify.  Moreover, the rule will not change anything for spouses of Green Card holders  (Note to Green Card holders married to individuals who entered without inspection – now is the time to get your citizenship!!).

So if you entered without inspection and are married to a US citizen, call attorney Karyn Schiller today to set up an appointment.  Ms. Schiller is an immigration attorney with an enormous amount of experience and dedication.  Karyn Schiller cannot promise you that your waiver will be approved, but she does promise you her full attention, the benefit of her tenacious advocacy as well as an honest assessment of your case.

So call (914) 358-1400 today or email Karyn Schiller.  Just  Click here to make an appointment


  1. Hi. I have a situation where my girlfriend came into this country without inspection. Currently we are expecting a child in a few months and are looking to get married. However, I know there are a lot of obstacles to help or obtain citizenship. I do know that there is under no circumstances,I can not allow her to go back to her country and risk the chance of not getting her back. Any information I will greatly appreciate it. Thank you in advance.

    1. Ted, as you clearly know, you will need to be married before you can do anything. Thereafter, because your wife entered without inspection you will need a more detailed consultation with a competent immigration attorney to help you work through your options. This is not a simple matter.

      Edit – since I responded to this request, USCIS has begun processing Stateside waiver applications for spouses who entered without inspection. This means that the spouse can apply for a waiver here in the US, and only once approved, travel home quickly to pick up the visa without worrying about not being allowed to return.

  2. Hi there,

    My wife who is a Syrian citizen entered the U.S. EWI in 2004; recently she got a TPS because of the situation in Syria. We filled for I-130 and it got approved. Then we received an I-94 from USCIS and indicating to us that she is allegeable to file for adjustment of status within the U.S. After filling for it and got an interview for her green card. We went yesterday to ___________where the immigration officer told us, she is not eligible to get her green card because of EWI.
    we told him the fact that the message is indicating to file in the U.S. , he agreed that there might be something wrong or someone from USCIS ” Screwed up” he asked his supervisor and was told this need to go to national and see what they can do but eventfully it will be denied.

    My question to you is , have you see something like this before, is there a way to win this case if it gets denied ( appeal ) and what is you success rate in similar cases.

    Note. we have 3 kids all of whom born in the U.S. ( 6,4 and 2 years old)

    1. Because your wife has TPS, there may well be a solution to get around her entry without inspection, IF you are a US citizen. I will be glad to consult with you further about this.

  3. […] in January of this year I wrote about the pending change that could help spouses of US citizens who entered without inspection.  Thanks to the […]

  4. I EWi in 2000 I was 14, and I’m from Mexico. I’m now married to a US citizen. I qualify for the deferred action. Should I apply for that or should he just petition me so I can get my visa? Or do I need to do both?

    I’d really appreciate any help!

    1. Michelle,
      Thank you for contacting my office. Yes, you should definitely apply for deferred action because in the land of immigration you should always take what you can get. However, you may ALSO qualify for a waiver through your husband. In other words, there is nothing to stop you from applying for both. If you would like me to analyze whether you may qualify for a waiver, please contact me at my office at 914 358-1400. Best of luck

  5. Hi I entered the U.S in 2001 with an EWI,but in the end of 2001 I had received tps status. I’m married to a U.S. citizen. I received advance parole to go home to EL Salvador Dec.9th 2004 for 25 days. I have heard different things about advanced parole changing your EWI or being able to adjust your status.Could you please decipher this for me?

    Thank You

    1. Elvin, the reason you have heard different things is that the picture is not clear. USCIS has not come out with a definitive policy on whether the use of advance parole for someone with TPS is sufficient to allow them to adjust their status and get a Green Card. I would say that the chances are very good, and I would be glad to discuss this with you further. Call my office at 914 358-1400 for a consultation.

  6. I entered the US with a turist visa and when to middle, high school, and the university. In 2003 I was deny entry to the US
    while crossing the border and my visa was cut off. I crossed the river that same night since it was at night and I was in mexico
    with nowhere to go and in a very dangerous border town city. I graduated from the University in 2005 and left the US
    by myslef. I now been going out with a US citizen and we want to get marry and apply for a fiance visa. I love this women and
    I dont know what to do?? please say something that can help?

    1. Your situation is a very complicated one. In coming and going from the United States you may well have triggered what is known as the “permanent bar.” You need to consult with an immigration lawyer who is very experienced with this kind of situation and who can carefully analyze your situation. Because if you file papers without knowing what the real consequences may be, you could wind up in deportation proceedings very quickly.

  7. I am currently in mexico and been here for almost 8 years now. I am not in the united states.

  8. Hello, my name is Jamaria and I just want to clarify some things. I am a US citizen through birth, and my boyfriend of 5 years just recently got approved for the deferred action petition and working permit. We have a 2 year old son, and we also plan on getting married in a few months. Will this marriage allow him to be granted permanent residency or are there other steps we need to take?

    1. Jamaria,
      thank you for contacting my office. The answer to your question is that it depends upon how your boyfriend entered the country. If he entered legally and has a stamp and I-94 card to prove that he entered legally, then you can Petition on his behalf for a Green Card. If he entered without inspection, then you are out of luck and will have to keep your fingers crossed for immigration reform. Contact my office at 914 358-1400 for more information, if needed

  9. Hi. My husband entered illegally when he was 14 years old. He is now 23. We have been to a lawyer and discussed some options, but now know that the new thing about him being able to stay here during the whole process. That is him being approved. Im just really nervous on where to start and scared that the government will go back on their word or somethig will happen and they will take him from me and our children. He has never been in trouble. Has worked since he got here.

    1. It is true that your husband can now remain in the US while his waiver application for unlawful presence is being adjudicated. Once he receives provisional approval, he can travel home to pick up his immigrant visa and should not have any problems. However, if he needs a waiver for anything else besides for unlawful presence, this cannot be done. Please be sure that you have an attorney who has done this many times before.

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