Legal Question in Immigration Law in California

Re: I'm a US citizen married to an illegal alien.

Generally she cannot adjust to permanent resident in the US unless she is 245i eligible (that means, someone filed a petition for her before 04/30/2001).

If she is not 245i eligible, then she has to go back to home country to apply for a waiver. The likelihood of success and time takend depend on each individual case.

Re: I'm a US citizen married to an illegal alien.

Your wife may be able to obtain U.S. permanent residence without leaving the country if she is eligible to apply for adjustment of status under INA Sec. 245(i). She probably can apply under 245(i) if an immigrant petition (Form I-130 or I-140) or a labor certification application was filed on her behalf (by a U.S. citizen or permanent resident relative or employer) before May 2001.

If she is not eligible under 245(i), then the only other way for her to gain legal immigration status in the U.S. would be to return with an immigrant visa, for which she could apply at a U.S. consulate once your immigrant relative petition for her was approved by USCIS. The trouble is, by departing from the U.S. she would trigger a ten-year bar from returning. This bar can be waived in certain circumstances, but it can't be applied for before it is triggered by departure (so one can't be assured in advance of obtaining the waiver). The waiver process usually takes several months, during which time the applicant must remain outside the country.

[Please realize that the above comments are based solely on the limited facts presented in your question; additional factors might operate to augment the legal obstacles in your case (for example, your wife might face grounds of inadmissibility in addition to those raised by her entry without inspection, which grounds, unlike entry without inspection, may apply to applicants under 245(i). Note also that filing an I-130 for her would serve to call her and her location to the attention of the U.S. immigration authorities, which conceivably could then attempt to deport her; this possibility, while probably very unlikely, must be taken into account as you plan your strategy.]

Feel free to contact me for a comprehensive consultation, for which I do charge a fee.

Best wishes,

Brian Sather

Re: I'm a US citizen married to an illegal alien.

Your wife might qualify for "cancellation of removal" if she meets certain criteria WITHOUT having to leave the U.S.

(1) She must be in the U.S. for 10 years or more, (2) be a person of good moral character, and (3) her removal would cause extreme and unusual hardship on her U.S. citizen or resident spouse, child or parent.

Good luck.