Law Office of Christopher E. Ward, LLC
Douglasville, GA 30134
(817) 805-3670 or
Monday thru Friday
8:30 am to 5:30 pm
By phone or email,
24 hours/7 days a week
Are you an EWI (Entry Without Inspection) and married to a US citizen?
With a very narrow and limited exception (meaning probably not you), you will be required to have a consulate interview in your home country. Not a terrible thing if you have less than six months of unlawful presence in the United States even though you should ensure you are admissible before leaving for the consulate interview. Remember, having the right to live in the United States and being able to enter the United States are two completely different things. You may be allowed to legally live in the United States but unable to legally enter the United States.
Now, if you have been living in the United States accruing unlawful presence time (remember, you do not start accruing unlawful presence until your 18th birthday) for more than six months but less than one year, you are barred from entering the United States for three years. If you have accrued one year or more of unlawful presence than you are barred from entering the United States for ten years.
Here is a sad scenario, seen it. US citizen spouse wants to get his EWI spouse her papers – to become a permanent resident and eventually a US citizen (great). They have been married for several years, excellent! They have several children, congratulations! They get on the internet, search how to do it, they file an I-130 because the internet says they can, they get an interview date, go the consulate in the home country, and everything is fine until the consulate officer says “everything looks great, you have a qualifying relative (your US citizen souse), and would love to approve your paperwork, BUT, you are barred from entering the United States because…..” Now there is a spouse stuck in one country and a spouse with the kids in the other.
This is a problem, a very serious problem. And the answer is complex, time consuming, and will customarily take up to a year to resolve, if it is resolvable. This problem requires an I-601 filing.
The underlying purpose is to waive the ban on inadmissibility. It involves a two prong test: first, to PROVE the ban creates an extreme hardship on the qualifying relative (spouses and parents are
qualifying relatives, the children are not), and second, to PROVE the spouse (the one stuck in another country) deserves the discretionary approval (discretionary because the law does not
automatically approve the waiver based on the evidence submitted but rather gives the power to approve or not to the attorney general of the United States
at his discretion.)
In March of 2013, the law went into effect allowing the use of an I-601A – the provisional I-601. The basics – this form allows for the waiver of the inadmissibility bans due to unlawful presence prior to leaving the country for the consulate interview. The standards for approval are the same for the I-601, the process is a somewhat different. But remember, the I-601A is only for the unlawful presence ban. If there are other inadmissibility grounds then you can still be denied entry. Good idea is to check with an attorney to evaluate if this avenue is a good idea for you.
Doing these by yourself can be a recipe for disaster, with that said, certain fact patterns are significantly more easier than others. The attorney will spend between forty to sixty hours over several weeks to prepare a waiver package. Our office charges a flat rate not including the required filing fees. We strive to find a rate that justifies the time and effort of the attorney yet keep the process affordable.