Once the marriage is reviewed by USCIS and the I-130 is approved, the case is forwarded to the National Visa Center (NVC). The NVC will then request more documents to evaluate if the foreign national is eligible and forward the case to the US embassy in the applicant’s native country.

The embassy will schedule a marriage interview to evaluate whether the marriage is legitimate. The embassy will also identify different bars to immigration (grounds of inadmissibility). There are several bars to immigration, but by far the most common is the unlawful presence bar.

If a foreign national is subject to unlawful presence, the embassy will ask them to file an I-601 hardship waiver. This application must be thoroughly prepared and contain supporting evidence to prove that the United States citizen spouse would face extreme hardship if the foreign national was forced to return to their home country.

The I-601 waiver is not processed by the embassy, but forwarded to the nearest immigration office in the native country of the applicant. The decision can take several months or longer, during which time the applicant will have to wait in his or her country.

Once the waiver is granted, the person can return to the United States as a permanent resident.

However, if the waiver is denied, the person has the right to appeal. If the appeal is denied, they will have to wait outside the United States for either 3 or 10 years, even if they are married to a US citizen or have children in the United States.

It is very important to be well prepared and have an experienced immigration attorney represent you in this process. For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

What exactly falls into the category of extreme hardship?

Here are some of the most common factors that are looked at:

Medical hardship: For example, the US citizen has a serious disease such as cancer and needs his or her spouse to help with medical treatment or financial support.

Psychological hardship: Everybody will experience some level of psychological or emotional hardship if separated from his or her spouse, but that is not enough to qualify for a hardship waiver. For example, if the US citizen spouse is unusually vulnerable because of traumatizing experiences in the past; this could demonstrate that this psychological hardship is more than the usual pain of separation from a spouse.

Community ties: Would the US citizen be able to live in the native country of the spouse? Do they speak the local language? Would they be able to integrate in the local community? Or would they have to face extreme hardship by moving to the country of the spouse?

For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

Before doing that, let’s have a look at some special scenarios.

Unlawful presence is only triggered when someone leaves the United States. If you have entered the country legally, let’s say on a tourist visa for example, your visa has expired and you’ve married a US citizen, you would be able to process your case within the United States and thus not have a problem with unlawful presence (please note that if you entered on the Visa Waiver Program and overstayed you should consult an immigration attorney before adjusting status to determine whether or not you are able to adjust your status).

Unlawful presence comes into the picture when you’ve entered the country illegally in the first place and have no way of adjusting your status or of processing your case within the country. The moment you leave the United States to get a visa from a US embassy in another country, you trigger the unlawful presence bar.

So, what do you do, when you are in this situation?

Waiver for unlawful presence.

The I-601 waiver – The most common cases are Green Card cases, where somebody wants to come back to the United States to be with their spouse.
To get a waiver of unlawful presence, you have to show extreme and unusual hardship to your US citizen or permanent resident spouse (if your application is based on marriage to a US citizen).

For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

What is unlawful presence?

A very common unlawful presence scenario is when someone enters the country on a tourist visa, which has a set expiry date, and overstays. If you don’t leave the country before the expiry date, you start to accumulate unlawful presence.

Unlawful presence can be a bar to immigrating to the United States. If you have more than 180 days of unlawful presence, you are not allowed to enter the U.S. or adjust status (banned) for 3 years. After 1 year of unlawful presence, the ban goes up to 10 years. For example, if you’ve entered the United States on a tourist visa and have overstayed for more than 180 days and now leave the country to get a student visa or any other kind of visa, you will be barred from entering the United States for 3 years. This bar is very rigid. Even if you marry a US citizen a few months after leaving the country, you would still be barred for 3 years.

(this blog post assumes that  the foreign national requires a waiver because they accrued unlawful presence by entering without inspection or departed the United States after the expiration of the period of stay authorized by the Attorney General – for more than 180 days).

However, you can obtain a waiver of the three or ten year bar by applying for a waiver. I will discuss these waivers in my next post.

Exemptions from the unlawful presence bar.

Two examples are students and J1 visas, which don’t have expiration dates and are valid for the duration of status.

For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

Origins of the R-1 Visa

The R-1 visa was put into law as part of the Immigration Act of 1990 with strong support of the Catholic Church. They faced severe shortages of priests, monks, nuns, healthcare staff in their hospitals and teachers in their schools. It was also supported by the evangelical lobby and welcomed by the Hindu and Buddhist communities.

R Visa Requirements

The requirements for becoming eligible for an R Visa are:

• You’ve been a member of a religious organization for at least two years.
• The religious denomination has a bona fide non-profit religious organization in the US. This means, that the organization is tax exempt under the US tax law.
• The organization is petitioning for you to work for them.
• You will work for them as a minister or in a religious vocation or occupation. Minister is defined as an individual who is trained and authorized to perform the duties required by the denomination.
• And, of course, you intend to return to your home country at the end of your stay.

Spouses and children of the R-1 visa applicant are eligible for an R-2 visa. They are not permitted to legally work within the United States.

To find out more about the R Visa please visit our R-1 Visa page on www.ranchodlaw.com or call our office at 415-986-6186.

The Affidavit of Support is one of the most complicated and important forms required during the marriage based green card immigration process.

If you are a United States Citizen or a Green Card holder and you sponsor somebody to come to the United States, then you need to make certain promises to the US government. One of them is that you have the means to support this person financially. You must show to the USCIS that you have sufficient income to ensure that the beneficiary will not become a public charge.

In order for you to be able to sponsor a foreign national for a green card, your income must meet or exceed 125% of the Federal poverty guidelines indicated for your household size. The exact amount for the Federal poverty guidelines is updated every year. You can find the current guidelines here: http://www.uscis.gov/files/form/i-864p.pdf

The Affidavit of Support must be filed at the same time as the green card petition.

If you don’t meet the income requirements, you have to find a joint sponsor for the green card petition, who is also a US citizen or permanent resident. Typically, this person would be a family member or a very close friend, although legally, it could be any person who meets the requirements. This joint sponsor must complete an additional Affidavit of Support, in which he or she attests that the beneficiary will not become a public charge.

Both Affidavit of Support forms, along with supporting documentation such as verification of salary and employment, tax returns, recent paystubs, etc. will be included in the green card petition.

If you find yourself in a situation where you are sponsoring your spouse to get a green card, please contact us in our offices in San Francisco, Santa Clara, and Sacramento. You can call us at 800-753-1399. We will be happy to assist you.

Nonimmigrant Visas

If you plan to stay in the US temporarily, for reasons of tourism, business, medical treatment, temporary work or a number of other possible reasons, you need to apply for a nonimmigrant visa. This visa allows you to travel to the  U.S. port-of-entry to request admittance from a Department of Homeland Security official. There are around 20 different visas available in the nonimmigrant classification, that cover a large variety of possible reasons for a short-term visit.

Immigrant Visas

Immigrant visas are for foreign nationals, who plan to live and work in the US permanently. There are major categories of immigrant visas are the following: employer-sponsored, family-sponsored (including marriage based green cards and green cards for parents), and special immigrants.

US law limits the number of immigrant visas available each year.  Although there is not a limit on the number of immigrant visas available for immediate relatives.   In some cases, even if the USCIS approves an immigrant visa petition, you may have to wait several years to be issued an immigrant visa number by the State Department. There is a certain preference system in place, according to which immigrant visas are issued.

The process of applying for an immigrant visa has several steps and depends on the nature of each particular case. To avoid any pitfalls I strongly recommend that you contact an immigration attorney to discuss your options. An experienced attorney can help you make the right decisions and help you get your visa in the shortest possible time.

I invite you to contact us in our offices in San Francisco, Santa Clara, and Sacramento. You can call us at 800-753-1399 if you have questions regarding your immigration options. We will be happy to assist you.

Once the national visa center receives the appropriate documents and completes processing of your case, they will transfer the case the United States embassy in the country of the foreign national. At this point, an interview at that embassy will be set. There usually is quite a long waiting period involved. The interview at the embassy usually takes place one year after the marriage petition has been filed.

If the foreign national travels back to their country to appear for the interview, they will immediately be barred from entering the US for 10 years, if they have overstayed for more than one year. Consequently, the consulate will deny their visa, which is a prerequisite for becoming eligible for an I-601 waiver.

The waiver application cannot be submitted before the Immigrant visa has been denied.

That I-601 hardship waiver is based on the hardship to the United States citizen spouse.  You must prove that the US citizen spouse will face extreme hardship which depends on several factors  (please see our I-601 hardship waiver articles  at www.ranchodlaw.com for these specific factors). Simply stating that you miss your spouse greatly or will be lonely are not  good enough reasons for a hardship waiver.

This is one of the best ways for those who have entered without a visa (EWI), who are married to a US citizen, to obtain a green. They have to leave the country, go through the waiver process and re-enter the United States with an immigrant visa.  However, if a relative or employer previously filed a petition on your behalf you may be eligible for 245i.

Applying for an I-601 Hardship Waiver can be a very time consuming and confusing process.

Please contact the Ranchod Law Group with offices in San Francisco, Santa Clara, and Sacramento, serving clients nationwide. You can call us at 800-753-1399 if you have questions regarding the I-601 hardship waiver.

If your spouse has entered the United States illegally (entry without inspection), we have a whole different issue.

One possible scenario is that somebody entered the United States legally with a visa, but overstayed. When such a person marries a US citizen, they can usually adjust their status within the country, if they can prove, that they entered the US legally.  (There are exceptions to this rule and you should consult an experienced immigration attorney if you are out of status.  Additionally, the law has recently changed if you have entered on a visa waiver program but overstayed).

This is different for people, who enter the United States without inspection. They do not have the option to adjust their status within the United States and become legal, even if they get married to a US citizen. For them, the best option to obtain a green card is to apply for an I-601 Waiver. For this, they have to leave the country, get the waiver approved and re-enter the United States on an immigrant visa.

Following is an outline of the process you have to go through, if you are in this category and want to become a legal resident:

Step 1: File a Marriage Petition

First of all, you have to file a marriage petition. This petition is filed by completing the I-130 form and appropriate supplemental documentation.

Once the petition is filed and approved, the case will be sent to the national visa center.

We will discuss the additional steps in a subsequent blog post.  Please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186 to learn more about how to obtain a I-601 hardship waiver.