The Marriage Exception to Unlawful Presence

There is a key statutory loophole in the Immigration and Nationality Act (INA) that allows many of my clients who came to the U.S. legally, but fall out of legal non-immigrant status at some point during their stay, to acquire permanent residency in the United States.

Persons who overstay their non-immigrant visas begin to accumulate what is known as “unlawful presence” upon the expiration of their lawful status.  The penalty for overstays is quite severe, a 3 year bar to readmission to the U.S. for persons who overstay for more than 180 days but less than one year, and a 10 year bar for persons who overstay more than one year.

The statutory loophole is this: a U.S. citizen may petition on behalf of a foreign national spouse or other immediate relative, and that relative (in most cases) may immediately adjust status within the United States to that of permanent resident, regardless of whether the relative has accumulated unlawful presence that would otherwise trigger a 3 or 10 year bar based on an overstay, or has performed illegal work.  By the way, “adjustment of status” means that a person changes from a non-immigrant visa holder statues to immigrant status, which is initially that of a green card holding permanent resident.   The key to taking advantage of this very significant loophole is that the immediate relative must have entered the U.S. legally.

There is a significant wrinkle if the petitioner is a permanent resident.  Permanent residents are also able to petition on behalf of many of their close relatives as well, including a spouse and unmarried children.  Here is the problem: there is no unlawful presence or illegal work loophole for these relatives.  So applying to adjust status given those circumstances could result in those persons being placed in removal proceedings. Not where you want to be.

In addition, the new unlawful presence waiver, which permits certain persons that entered the U.S. illegally to prequalify for a waiver of unlawful presence before they return to their home country to process at the U.S. Consulate or Embassy, does not apply to relatives of permanent residents, only to relatives of U.S. citizens.

It’s a double whammy.

I am seeing instances of these cases in my office because the availability of immigrant visas for the F2A preference category for spouses and unmarried children of permanent residents is current across the board as of today.  There used to be a backlog, which would usually allow enough time for the resident to become a citizen and then his or her relatives would be able to adjust status without being concerned about unlawful presence or illegal work.

It’s a good reminder why you should seek the guidance of a licensed immigration attorney to assist you.  While the forms that USCIS puts on their website seem simple, the law behind them is fiendishly complex, as my example illustrates.  Straying from the dead-dog simple is likely to take you into dangerous territory without you even knowing it.

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