If You Entered without Inspection, You May Just have Won the (Immigration) Lottery

Back 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 implementation of a new rule, starting on March 3, 2012, spouses, parents and minor children of US citizens who entered the country without inspection, may be eligible to apply for Green Cards without having to leave the country and face a prolonged separation from their family. This is great news for thousands and thousands of immigrants who are otherwise eligible to apply for Adjustment of Status, but have delayed doing so because they did not want to have to process through the Consul in their home country and run the risk of being stuck abroad for a lengthy period, or worse, being unable to return at all.

In 1997 US Immigration Law was changed so as to bar re-entry to the US for either 3 or 10 years to any individual who had entered illegally and/or overstayed his/her visa for more than 6 month or 1 year, respectively, and then left the country. Additionally, individuals who entered without inspection, even if they subsequently married a US citizen, were no longer eligible to apply for a Green Card from within the US but had to return home and process through the Consul.  Putting these two provisions together created a catch-22 situation whereby the spouse of a US citizen who had entered illegally was required to return home in order to apply for a Green Card, but as soon as he/she did so, the 3 or 10 bar to re-entry was triggered.  The spouse was always eligible to apply for a waiver of the bar, but would have to remain outside for as long as it took to adjudicate this waiver application. Further, if denied, the spouse would find his/herself stuck abroad for either 3 or 10 years.  In practice, most such individuals simply chose to remain in the US without documentation and continue living in the shadows, rather than take this risk.  Until now.

From March 3, 2012, applications for a waiver of the 3 or 10 years bar can be submitted from within the US. Further, the spouse who has applied can continue to remain here while the application is being adjudicated.  Only when (and if) it is approved, will a brief trip home to pick up the visa at the Consul be required.  But if all goes well, this should be nothing more than a formality.  It is important to note, however, that the standard for obtaining a waiver has not changed.  Indeed, you will still need to prove exceptional hardship to your US citizen spouse or parent in order to qualify – a process that I strongly recommend you do not attempt without the guidance and assistance of a competent immigration attorney.  But at least you will no longer have to face a long or possibly permanent separation from you loved ones.

If you think you may be eligible for this new benefit , don’t delay. Call  (914) 358-1400 today or email Immigration Attorney Karyn Schiller.  Just  Click here to make an appointment


  1. I’m EWO 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?

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