News & Insights

1. Can You Adjust Status If You Entered Without Inspection?

• General Rule:
  • To adjust status within the U.S. through marriage, you must have been inspected and admitted or paroled into the country.
  • Individuals who entered without inspection are typically ineligible for adjustment of status.
• Exceptions for Certain Cases:
  • Section 245(i): If you are covered under Section 245(i) of the Immigration and Nationality Act, you may adjust status even if you entered without inspection. This applies if:
    • You were the beneficiary of a petition or labor certification filed on or before April 30, 2001.
    • You were physically present in the U.S. on December 21, 2000, if the petition was filed between January 14, 1998, and April 30, 2001.
• Consular Processing and Waivers:
  • If you do not qualify under Section 245(i), you will need to apply for an immigrant visa through consular processing at a U.S. embassy or consulate in your home country. Since leaving the U.S. after unlawful entry often triggers a 3- or 10-year bar on reentry, you may need to file a Form I-601A (Provisional Unlawful Presence Waiver) to address this issue.

2. How Does a Pending Asylum Case Affect This Process?

• Compatibility of Both Cases:
  • A pending asylum case does not prevent you from applying for a green card through marriage.
  • However, inconsistencies between your asylum claim and marriage-based green card application (e.g., marital status, personal history) could lead to scrutiny.
• Withdrawal of Asylum Case:
  • If your marriage-based green card is approved, you may no longer need your asylum case.
  • You can withdraw your asylum application once your green card is secured, but do so only after consulting with an immigration attorney to avoid unintended consequences.

3. Steps to Pursue a Green Card Through Marriage in This Situation:

• File Form I-130 (Petition for Alien Relative):
  • Your U.S. citizen spouse must file Form I-130 to establish the bona fide nature of your marriage.
• Determine Eligibility for Adjustment of Status or Consular Processing:
  • If you entered without inspection, consult an attorney to evaluate if you qualify under Section 245(i) or require consular processing.
• Prepare for Consular Processing and Waivers:
  • If consular processing is required, file Form I-601A to request a waiver for unlawful presence before leaving the U.S. for your visa interview.
• Provide Evidence of Bona Fide Marriage:
  • USCIS and the consulate will closely examine your marriage to ensure it is genuine. Provide strong evidence, such as:
    • Joint financial records.
    • Lease agreements or property ownership.
    • Photos and affidavits from family and friends.
• Avoid Travel Without Advance Parole:
  • Do not leave the U.S. without advance parole or an approved waiver, as it could jeopardize your asylum and green card applications.

4. Challenges You May Face:

• Unlawful Entry:
  • Entering without inspection complicates adjustment of status and typically requires consular processing.
• Asylum and Green Card Overlap:
  • Discrepancies between the information in your asylum application and marriage-based green card application may lead to delays or denials.
• 3- or 10-Year Bar:
  • Leaving the U.S. for consular processing could trigger a bar on reentry without an approved waiver.