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Health & Fitness

Immigration: Can I Sponsor My Spouse?

As a practicing US immigration attorney, I hear the following scenario every week:

 

“My spouse is not legal.  He entered the US by crossing the border from Mexico into Texas (or by using a substituted passport-someone else’s visa falsely placed into his passport).  I am a US citizen.  Can I help him become legal?”

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The simple answer is:  Yes.  The process itself is not simple. 

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First, the US citizen files a petition asking US Citizenship and Immigration Services(USCIS) to approve the marriage:  USCIS must be convinced that the marriage is real, and entered into for love, not solely for immigration purposes.  There are a number of forms and documentation which must accompany the petition packet, including a filing fee and passport-style photos of both the US citizen and the undocumented spouse.

 

When the petition is approved an Approval Notice will be sent to the US citizen and to the National Visa Center (NVC).  The NVC is the agency which prepares the papers to be sent overseas to our US Consulate in the spouse’s home country.  Because the spouse entered the US illegally without a valid visa, he is not eligible to complete his process inside the United States.  As a quasi-penalty for having entered the US illegally, he must return to his native country and have his personal interview at our US Consulate.  However, during the pendency of the petition and the NVC process, he can remain in the US (out of status).  The NVC will forward a bill for the payment of the consular processing filing fees.  The consular filing fees can be paid online. 

 

After the consular filing fees are paid online, the new Family Unity Waiver Application can be prepared.  Because the spouse came to the US without a visa, and remained in the US out-of-status, he will require a Visa Waiver in order to return to the US after his consular interview at our US Consulate in his home country. Without the Waiver, he would have to remain outside the US for a period of 10 years before he would be granted permanent resident status.  For this reason, the Family Unity Waiver is extremely important.  In the past, the spouse had to leave the US and apply for the Waiver outside the US, not knowing if it would be granted or if he would be allowed to return to the US.  Under new regulations, the new Family Unity Waiver can now be filed inside the US, before the spouse ever leaves for his personal interview at the US Consulate.  The Family Unity Waiver is not automatic, nor is it an easy Waiver to obtain.  There are strict guidelines, and the US citizen must show that it would be an extreme and unusual hardship to be separated from her spouse for a period of 10 years.   Every family would be upset if they had to be separated for 10 years; but this couple must prove that their hardship rises to a higher level of hardship than other families.  Generally, extreme hardship can be based upon an illness that the US citizen has, which requires her spouse to care for her, or an illness from which one of their children suffers which requires both parent’s participation; or if the US citizen can show that she is in school and would have to leave her education if she went to live outside the US for 10 years with her husband; or if the US citizen could not support all of the household bills on her own and could end up losing their house; or if the US citizen would lose her career if she left the US to live overseas with her husband.  Each case has its own facts, and each case must be analyzed separately.  The Waiver packet is filed in the US. 

 

When the Waiver is approved, then the final forms for the US consulate can be completed and submitted to the National Visa Center.  Once the NVC has collected all of the required documentation for the US Consulate, the packet is forwarded to the US Consulate and our Consulate schedules a fingerprint appointment, medical exam and personal interview for the spouse.  The spouse must be able to show that he is not a criminal, that he has all of his vaccinations, has no communicable disease, and must be able to pass the personal interview (again validating the marriage).  It is possible for the spouse to leave the US a week or so prior to the scheduled interview, attend the interview, and return to the US in a matter of a few weeks.  The US citizen is NOT required to attend the interview.

 

None of my clients want to leave the US.  However, if the spouse considers this as a short vacation, spending time with his family whom he has not seen in years, returning to the US as a permanent resident, I can generally convince my clients to make the trip.  And, best of all, this process does work!

 

It’s not easy; but if the clients are dedicated and gather all of the information and documentation required, and persevere with conviction, they will generally have a successful outcome, and the spouse will return to the US as a permanent resident.

 

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