Typically, when a US citizen marries a non-immigrant – a foreign national who is inside the United States legally, the process does not require a I-601 hardship waiver. This process of obtaining a green card is called “adjustment of status” and is handled by the US immigration (USCIS) inside the US.
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.