When a relative is outside the U.S. and is being petitioned to come in as a legal permanent resident, or if they are here in the U.S. after an unauthorized entry, they must apply for their immigrant visa and attend an interview at the U.S. consulate in their home country. This process is known as Consular Processing and is used when a U.S. citizen or lawful permanent resident wants to immigrate a family member. The length of this process depends mainly on whether the petitioner is a U.S. citizen or lawful permanent resident, what country the relative is immigrating from, and how many other applications are pending at the same time. Once a relative petition is approved, eligible family members must wait until a visa number becomes available before they can apply for an immigrant visa to come to the U.S. as a lawful permanent resident.
Unlike consular processing where the applicant must process their case from outside the U.S., the adjustment of status process is available for spouses and children of U.S. citizens who entered the country legally and are either still in legal status or who have not left since their status expired. Once a person’s status is adjusted, they are granted legal permanent residence and will receive a Green Card as proof of their legal status.
An adjustment of status proceeding can be a complex process, and not everyone is eligible. Depending on your situation, you may need to prove lawful entry to the U.S, no negative immigration history, current non-immigrant status, and have an immediately available immigrant visa number.
The K-1 visa is a non-immigrant visa issued to the fiancé of a United States citizen to enter the U.S. for the purpose of marriage. A K-1 visa requires the non-immigrant fiancé to marry the U.S. citizen petitioner within 90 days of entry. After marriage, the K-1 visa holder may apply for lawful permanent residency through the adjustment of status process and receive their green card.
The first step is to file an I-129 Petition for Alien Fiancé(e) and required evidence with the appropriate U.S. immigration office. Once the petition is approved, the foreign fiancé must file a visa application at the U.S. Embassy or Consulate in their home country. This process involves a medical exam as well as providing proof of financial support by their petitioning fiancé.
Minor children of the K-1 visa applicant may accompany their parent to the U.S. as well with a K-2 derivative visa. Their status is contingent on the marriage of their parent to the petitioning U.S. citizen and may also qualify for adjustment of status as a step-child of the petitioner.
There can be many obstacles in the way to a successful immigration or even lead to deportation. An experienced immigration lawyer can help immigrants and their families obtain inadmissibility waivers that may enable them to overcome the issues preventing them from achieving their immigration goals.
A Waiver of Inadmissibility Can Help You Enter and Remain in the Country
Criminal activity, deportation orders, illegal entry, and alleged misrepresentations to government officials are all grounds under the law that immigration officers may cite as reasons to deny someone admission into the United States. Fortunately, the law also provides a way that you may still apply for and obtain admission by application of a waiver of certain grounds of inadmissibility. Obtaining a waiver requires filing the required forms and providing evidence supporting the waiver request. In most cases, the evidence submitted will be related to how the intending immigrant/applicant’s family in the United States will suffer extreme hardship if the application is not approved.
Waivers for Unauthorized Presence in the United States.
The most common reason for someone to be denied legal residence or admission is for having current or past illegal presence in the United States. If you are abroad and ineligible for an immigrant or non-immigrant visa because of inadmissibility based on prior illegal presence, you must apply for a waiver with Form I-601 Application for Waiver of Grounds of Inadmissibility. Once the application is submitted, you must wait until it is approved to be eligible for a visa and admission to the United States. This process can take several months and requires a lot of patience from you and your family.
Certain applicants already in the U.S. who are still required to leave to their home country for their visa interview may qualify for apply for the waiver before they are even scheduled to leave. A provisional waiver (Form I-601A) allows you to remain in the U.S. with your family while a decision on your waiver application is pending.
To be eligible to apply for a provisional waiver, you must:
- Be an immediate relative of a U.S. Citizen or Legal Permanent Resident (spouse, child, parent);
- Be the beneficiary of an approved immediate relative petition;
- Be 18 years of age or older;
- Be present in the U.S. at the time of filing the application for a provisional waiver and for biometrics collection at a USCIS Application Support Center;
- Have a case pending with the Department of State (DOS) based on the approved immediate relative petition and have paid the immigrant visa processing fee; and
- Show extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
Approval of any waiver application is not automatic. It takes familiarity with the immigration process and preparation of a strong, persuasive case to convince U.S. immigration that you deserve a waiver and admission to the country. See also assistance for undocumented victims of crimes