What can we do if she is not eligible to change her status? 3 Answers as of August 27, 2010

I am a US Citizen. My wife has been approved for the I-130 that I filed on her behalf and USCIS sent us a notice of approval mentioning that they sent the file to National Visa Center and that my wife is not eligible to adjust her status. What should we do next?

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Pacifica Legal Services
Pacifica Legal Services | Floyd Fernandez
I appreciate your contacting me with your question. I think that it does not end the opportunity for your wife to obtain a green card at all. That is a typical response for anyones initial petition for an alien relative who initially came into the USA. Please give me a call, and I will gladly set up a telephone or in-person conference, depending on the distance we are from each other and what is convenient for you.
Answer Applies to: California
Replied: 8/27/2010
JCS Immigration & Visa Law Office
JCS Immigration & Visa Law Office | Jack C. Sung
Your wife may not adjust status if she entered the United States illegally. The exception is if she is the beneficiary of an immigrant petition (Form I-130 or I-140) filed on or before April 30, 2001.

If she is not eligible to adjust status in the United States, she must process her immigrant visa (green card) through the US embassy in her home country.

The tricky part is that if she departs the U.S. after having entered illegally and stayed for more than one year, the law automatically impose a penalty of 10 years on her immigration record. This means that she will not be able to apply for any visa for 10 years. The only way to overcome the penalty is to file an I-601 hardship waiver.

I recommend filing the hardship waiver only if there are significant hardship factors that can be presented. For example, severe medical condition of her family (must be green card or citizen) in the United States. Without strong hardship factors, the I-601 waiver will almost always be denied.

Having said that, if not a lot of hardship factors can be presented, I recommend that she abandon the application process and not leave the United States, as that would trigger the irreversible penalty on her record. Rather, I would recommend that she stays and waits for the immigration law to change to see if she can adjust status in the United States.
Answer Applies to: California
Replied: 8/26/2010
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