Get green card, from a NO paper background

Asked almost 3 years ago - San Francisco, CA

I am a citizen and have 2 american kids, 5 years old and 3 months. My wife is from el salvador and came here with no paper.
I was told that she has to go back in her country for maybe 10 years before to, maybe, can come back in the us with paper.
is there any other solution ?

Attorney answers (3)

  1. Neil Ian Fleischer

    Pro

    Contributor Level 20

    4

    Lawyers agree

    1

    Best Answer
    chosen by asker

    Answered . Generally, a person who entered the country illegally and is here without proper immigration status must return to his/her home country to file an immigrant visa petition to be able to return to the United States. The problem is, once he/she leaves the country, he/she faces an automatic unlawful presence bar of inadmissibility of 3 or 10 years before they can return (3 years if he/she had been in the U.S. less than 6 months and left voluntarily, 10 years if in the U.S. more than a year).

    One exception to this is if the foreign national was the beneficiary of a labor certification application, or immigrant visa petition for an alien relative (I-130) or immigrant petition for alien worker (I-140). In this case, he/she may file for an adjustment of status under INA § 245(i) to remain in the country for the processing of the visa petition. This law, which is no longer in effect (but petitioners who fit within the criteria are still grandfathered into the process), allowed for the payment of a $1,000 fine to waive the unlawful presence bar. The requirements are that the foreign national is the beneficiary of the qualifying immigrant or labor certification petition filed on or before April 30, 2001; that if the foreign national was the principal beneficiary, that he/she was physically present in the U.S. on December 21, 2000; that the foreign national has a visa immediately available to him/her and he/she is admissible to the U.S; and the foreign national must pay an additional $1000 fee.

    In the case that a 3 or 10 year bar is applicable, the immigrant may file an I-601 extreme hardship waiver to eliminate the unlawful presence bar to returning to the U.S., but the time it takes for DHS to process these petitions can take weeks, months, or even years, and the person must remain in their home country until the waiver is approved. In deciding what qualifies as extreme hardship, the DHS official will consider: 1) the presence of LPR or USC family ties to the U.S.; 2) the qualifying relative's family ties outside the U.S.; 3) the country conditions in the country of relocation and the qualifying relative's ties to that country; 4) the financial impact of departure from the U.S.; and, 5) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation. They may also consider factors such as the impact of separation; the economic and other conditions in the country to which she will accompany her spouse or parent; the financial, emotional, cultural, and political conditions in that country and her ability to raise children and other quality of life factors, like health and employability.

    A new development, that has not gone into effect yet, is the Obama Administration’s announcement of changes to this process that will allow certain immediate family members to remain in the U.S. while their extreme hardship waivers are being processed, and only have to return to their home country for an interview and visa processing. In order to be eligible for this waiver, though, the foreign national must be an immediate relative of a U.S. Citizen (not a lawful permanent resident) and there must be extreme hardship to qualifying relatives who are U.S. Citizens if a person has to leave the country for the processing of their petition. The considerations for extreme hardship under this new announcement are the same as the I-601 extreme hardship waiver considerations.

    Neil I Fleischer (513) 977-4209 www.immigrate2usa.com Note: Neil Fleischer is an attorney licensed in the State... more
  2. Marc Richmond Amos

    Pro

    Contributor Level 10

    5

    Lawyers agree

    Answered . The only way to process the paperwork currently with her situation is if someone applied for an immigrant visa prior to 4/30/01 for her or perhaps her parents when she was a minor if she came to the US prior to 12/2000.

    If the above does not apply, then she would have to leave the US and apply for a hardship waiver. If she does not win the hardship waiver, she would have to wait 10 years.

    Recently, USCIS announced that the hardship waiver will be processed before having to leave the country so that she will know whether she will be subject to the 10 year penalty without having to leave the U.S. first. This is not yet in the regulations, but they announced they will make this change. So stay tuned.

    You definitely need a lawyer throughout this process.

  3. Deborah Lynne Karapetian

    Contributor Level 18

    3

    Lawyers agree

    Answered . As the others have told you, the best option is to petition her as a spouse of an USC and then process her for a waiver of the ten year bar in the US. Then when she returns home it will only be for a short period of time.

Related Topics

Green cards

A green card is a legal document which provides proof that the owner is a lawful permanent resident of the United States.

Carl Michael Shusterman

How to Renew your Green Card

Renewing your Green Card, or Permanent Resident Card, is important. If you have an expired Green Card you may be denied re-entry into the United States. You could also be charged with a... more

Immigrant visas

Immigrant visas can lead to permanent residence in the US, but they require being sponsored by either a family member or employer.

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

22,953 answers this week

2,870 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

22,953 answers this week

2,870 attorneys answering