What You Really Want to Know | Episode #10 | I am in USA illegally & married to USC or LPR- Can I get a Green Card & will I have to leave the country to get it?
Transcript: Hi, I’m Attorney Shaffer. Today on “What You Really Want to Know,” We answer the question, “I am in the U.S. illegally and I am married to a U.S. Citizen or Permanent Resident, can I get a Green Card and will I have to leave the country to get one?”
The answer is, it depends. "Illegal" or "Unlawful Presence" can mean a few different things. Not all unlawful presence is treated alike under the immigration law. So, to answer this question, we must look to the facts surrounding your unlawful presence. Specifically, we need to look at how you entered the country and there are 3 categories that people fall into:
The first category is a person who has been inspected and admitted to the United States using either a visa in your own name, a lawful Visa Waiver or you were paroled into the country. If you fall into this category then you will not have to leave the country to get a Green Card based on an approved Marriage Petition. In fact, you can file for your Green Card as if you were in lawful status.
The next category is someone who has been inspected and admitted to the United States using either fake documents or pretending to be someone else. If you fall into this category then you also will be able to apply for a marriage-based Green Card without leaving the country, however your are going to also need a Waiver of Inadmissibility based on fraud and misrepresentation.
And the last category, is a person who has not been inspected or admitted to the United States. If you fall into this category then you will have to leave the country in order to get a marriage-based Green Card and you will also need a waiver of inadmissibility. This is known as “Entry without Inspection” or “EWI,” and the most common type of EWI is a person who crosses the border without permission.
Although you do have to leave the country, the good news is, there was a law change a few years ago, you can now file this waiver before you leave the United States and you will not have to leave until you know the waiver is approved and your interview for your Green Card has been scheduled at the U.S. consulate or embassy abroad. This means you are only going to be out of the country for a few weeks.
In the past, you would have had to first leave the country, then file your waiver, then wait 6 months to upwards of a year for an approval before you would be scheduled for your interview to come back into the country. If your waiver was denied, then your stuck out of the country.
Of course, there are many more eligibility requirements that you must meet in order to get a Green Card and you cannot be subject to any grounds of inadmissibility. Figuring out if you are eligible for a Green Card and what steps you must take in order to get one is complicated. Contact an experienced immigration attorney before you begin to avoid headaches, delays and & denial!
That is all for this episode of, “What You Really Want to Know,” thanks for watching!
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