News & Insights

1. Basics of the Situation

• Entering Without Inspection (EWI):
  • If you entered the U.S. without being inspected by an immigration officer, you are generally considered inadmissible under INA § 212(a)(6)(A).
  • This makes adjustment of status (AOS) through Form I-485 more complicated, even if you marry a U.S. citizen.
• Eligibility for Adjustment of Status (AOS):
  • Normally, only individuals who entered the U.S. lawfully (with inspection and admission or parole) are eligible to adjust status under INA § 245(a).
  • However, there is an important exception:
    • Immediate Relatives of U.S. Citizens: Spouses of U.S. citizens may adjust status despite unauthorized entry if they qualify under INA § 245(i), which allows certain individuals who are otherwise ineligible for AOS to apply if:
      • A petition or labor certification was filed for them before April 30, 2001, or
      • They were physically present in the U.S. on December 21, 2000, if the petition was filed between January 14, 1998, and April 30, 2001.
• Provisional Unlawful Presence Waiver (Form I-601A):
  • If you do not qualify for adjustment of status under INA § 245(i), you will need to leave the U.S. and complete consular processing abroad.
  • However, departing the U.S. triggers a 3- or 10-year bar if you accrued unlawful presence:
    • 3-Year Bar: Triggered by 180+ days of unlawful presence.
    • 10-Year Bar: Triggered by 1+ year of unlawful presence.
  • The Form I-601A waiver allows you to request a provisional waiver of the unlawful presence bar before leaving the U.S. to attend your consular interview.
• Impact of Asylum Application:
  • While your pending asylum application allows you to remain in the U.S. and obtain work authorization, it does not cure unauthorized entry or inadmissibility for unlawful presence.
• Next Steps After I-130 Approval:
  • If you qualify under INA § 245(i) or entered the U.S. lawfully with inspection or parole, you can apply for AOS using Form I-485 without leaving the U.S.
  • If you do not qualify under § 245(i) or entered unlawfully, you will need to leave the U.S., obtain an immigrant visa through consular processing, and likely file Form I-601A before departure.

2. Practical Guidance and Steps Forward

• Confirm Entry Details:
  • Gather evidence of how you entered the U.S. (e.g., visa records, border crossing details).
• Assess § 245(i) Eligibility:
  • If a family- or employment-based petition was filed for you before April 30, 2001, consult an attorney to determine your eligibility under this provision.
• Prepare for Consular Processing:
  • If you need to file Form I-601A, begin gathering evidence of hardship to your U.S. citizen spouse.
  • Strong evidence includes financial, medical, emotional, and family-related hardships.