Filing immigration papers for your husband or wife can be a frightening experience, especially if they are here illegally. There is a great deal of misinformation about this process: when to do it, whether to do it, where and what to file. This article briefly addresses some of the questions that come up when a U.S. Citizen files for an illegal. However, it is very important in any case to get good legal advice before filing. If the case is filed without getting good legal advice, it could result in deportation of the foreign national.

The first issue to consider in filing for your husband or wife is whether to file at all. People with criminal convictions (aside from traffic violations) or with deportation/removal orders need to see an immigration attorney immediately to determine whether to file. Also, as discussed below, people whose original entrance into the country was illegal should also consult with an attorney before filing. One issue that comes up frequently is whether you can file a petition for a person here illegally. The answer is maybe. Part of the answer depend on if the person originally entered legally or whether they entered legally and their visa has now expired. Each of these situations is addressed below.

Filing for Someone on an Expired Visa.

If the person entered legally on a visa which is now expired, in most cases a petition may be filed and processed in the United States – it doesn’t matter that the visa may have expired many years ago. The fact that the visa expired does not, in and of itself, bar the person from successfully processing for a green card. Additionally, the fact that the foreign national may have worked illegally without authorization is not an obstacle to them getting their green card. The process involves filing a group of forms and supporting documents such as birth certificates, marriage certificates and tax returns. The immigrant must also pass a special immigration medical examination. The United States Citizen must also show that they are financially able to support the immigrant.

Once the paperwork is filed ,the immigrant gets a work card within a short time. Some time thereafter, the citizen and the immigrant are called for an interview at which an immigration officer determines whether the marriage is “real” or was just entered into to get a green card. Assuming the person passes the interview, they soon receive a “green card” and a few years later may apply to become a naturalized United States Citizen.

Filing for Someone Who Entered Illegally, i.e., Without a Visa

A. Processing the Petition in the United States

If someone’s original entrance into the United States was illegal, the only way they can process in the United States is if they are covered by a law called section 245(i). Section 245(i) allows people who came illegally to adjust their status in the United States as long as they pay the government a penalty fee, currently $1000. The sections covers people who filed any type of immigration petition on or before April 30, 2001. Even if the petition was denied, the person may still be covered under section 245(i) and can process in the United States through a different petition filed by their current husband/wife. Here are two examples where 245(i) might apply: (1) Brother files a petition for sister on or before April 30, 2001. It takes 12 years for that petition to be processed. In the meantime, the sister marries a United States Citizen. A U.S. Citizen husband can file a petition for the sister right away and she would be allowed to process in the US under section 245(i); (2) Employer files a petition for Mr. Jones. At the time, Jones’ daughter is under 21. The employer later goes bankrupt. Both Jones and his daughter are still eligible to immigrate under section 245(i) through a petition filed by a United States Citizen husband or wife and can process their cases in the United States.

Section 245(i) is very broad and can cover may people, sparing them inconvenience, cost and issues with processing at an embassy or consulate. It is very important to assess whether someone may be covered by this important law before filing.

B. Processing the Petition at an Embassy or Consulate

The last scenario involves cases where the person entered illegally and is not covered under section 245(i). In that situation, the person’s husband/wife must file a petition and once that petition is approved, the immigrant will have to leave the United States for a visa interview in their home country. If they have been here illegally for more than 180 days, they then will be charged with being “unlawfully present”. However, the government may pardon or “waive” this charge if the immigrant can show that they have a spouse, parent or child that would suffer extreme and unusual hardship. Extreme and unusual hardship is very difficult to prove. The mere fact that one would be separated from their husband or wife, standing alone, is not sufficient. The government looks at medical hardship, psychological hardship, financial hardship, and other factors when deciding to grant a waiver/pardon. Not all cases and granted and many are denied. Also, it can take some months before a waiver/pardon is decided and the immigrant must wait in their home country until a decision is made. It is important to have your case assessed by our office before even beginning the immigration process.

In conclusion, filing a petition for someone here illegally can be done but it can be a complicated process. People often think that once they are married to a Citizen it’s an easy process but that’s not always the case. The most important thing is to assess the case in the beginning to see if there are any problems. To avoid pitfalls, contact our office for advice and help at 310-384-0200.

Robert A. Perkins has been practicing immigration law for twenty (20) years and has also taught the subject as an adjunct professor at University of Illinois law school. Perkins, who is known nationally as “The Immigration Professor”, has appeared on numerous television shows, radio programs as a guest and speaker on various immigration topics. He currently lives in Los Angeles, California with his wife and two kids. Mr. Perkins is admitted to the Illinois and United States Supreme Courts.

ii. There are some cases where even someone who entered legally may not process in the United States, for example, if they originally entered on a crewman’s visa. For more information about this, please contact our office at 310-384-0200 for a consultation.