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 This law, which is no longer in effect (but petitioners who fit within the criteria are still grandfathered into the process), allowed for the payment of a $1,000 fine to waive the unlawful presence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.
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Neil I Fleischer (513) 977-4209 www.immigrate2usa.com Note: Neil Fleischer is an attorney licensed in the State of Ohio The below answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney/client relationship is created unless an Agreement is signed by the attorney and the client. Best regards, Neil Neil I Fleischer The Fleischer Law Firm, LLC 917 Main Street Cincinnati, Ohio 45202-1314 Direct telephone: 513 977 4209 email@example.com Enjoy our Blog at http://immigrate2usa.blogspot.com/
She'll have to leave unless she benefits from 245(i).
And no, getting deferred action won't alleviate the need for her to leave the United States.
THIS ANSWER IS FOR INFORMATIONAL PURPOSES ONLY, DOES NOT CONSTITUTE LEGAL ADVICE, AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Immigration is complicated and the wrong action can have serious consequences. Never take action in your case based solely on general information like is offered here. Speak to an attorney who can give you specific advice about your own situation.
If she did not enter legally, then she can only adjust status if she qualifies for 245(i), and has a valid petition for which a visa is immediately available. Deferred action does nothing to help.
Otherwise, she will need to leave the US to obtain an immigrant visa after obtaining the necessary waivers.
You should retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise you, and handle the case.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.