Marrying a U.S. citizen does not necessarily entitle a spouse who is out of status to adjust to that of a permanent resident. In some cases, where the spouse entered with a crewman C1/D visa, the law prohibits the filing of an application adjustment of status. Does this mean that this spouse will never obtain immigrant status? Or can the spouse apply for the provisional waiver?
Daniel entered the United States using a C-1 crewman visa under an assumed name. Daniel jumped ship and remained in the United States illegally. After one year, Daniel met and married Michelle, a US citizen. Michelle filed a visa petition for Daniel and it was later approved. Daniel attempted to file for adjustment of status but the U.S. Citizenship and Immigration Services denied the application.
Daniel and Michelle knew of a relative who entered with an assumed name but was able to adjust status. The couple was wondering whether they could just file for the waiver and apply for the immigrant visa through adjustment of status. After ten years, Daniel and Michelle now have three US citizen children. Is there a way for Daniel to legalize his status?
Crewman Visa Holders Without 245i
Visa overstays will generally waived for adjustment of status applicants who are immediate relatives (spouse, child (unmarried and under 21 years) or parent) of a US citizen. However, persons who entered the United States as crewmen are ineligible to adjust their status in the United States unless they are eligible for a waiver under Section 245(i). Here, Daniel is an immediate relative of a US citizen based on his marriage to Michelle. However, Daniel is not a beneficiary of a petition filed on his behalf before April 30, 2001 and is therefore not eligible for a waiver under Section 245(i), and will not be able to apply for his green card within the United States. The case would have been different if Daniel had a prior family or employment based petition filed before April 30, 2001.
Last year, crewman visa holders with immediate relative petitions are provided an opportunity to obtain waivers in the United States. With the provisional waiver approved, the visa may then be obtained at the U.S. Embassy abroad.
As the spouse of a US citizen, Daniel may apply for a provisional waiver of inadmissibility to cure his unlawful presence in the United States. Since March 4, 2013, certain immediate relatives of US citizens may file for a provisional waiver of inadmissibility in the United States to cure the unlawful presence bar before they depart from the United States to apply for the immigrant visa abroad. Applicants who greatly benefit from the provisional waivers are generally those who entered without inspection and are married to US citizens but not eligible for Section 245(i) waiver, applicants who entered as crewman with a C-1 visa and are not eligible for Section 245(i) waiver, and applicants who entered the United States with fiance visas but married another US citizen.
Effect of Assumed Name
In order to be eligible for the provisional waiver, the applicant must be a spouse, child or parent of a US citizen, have an approved I-130 petition, and have a pending immigrant visa case before the Department of States and have paid the immigrant visa fees, and be physically present in the United States at the time of filing the provisional waiver application. Furthermore, the applicant must not be otherwise inadmissible and must demonstrate that refusal of his or her admission to the United States will cause extreme hardship to the US citizen spouse or parent. Once the provisional waiver is granted, the applicant will travel abroad to be interviewed at the US embassy for the immigrant visa, and will be permitted to reenter the United States.
Here, Daniel meets all the eligibility requirements for a provisional waiver of inadmissibility, except for the fact that he is “not otherwise admissible”. Daniel used an assumed name or a fraudulent visa to enter the United States. This is a separate ground of inadmissibility from his unlawful presence in the United States, and may not be cured by the provisional waiver. Only those who have no other grounds of inadmissibility other than being “out of status” may consider filing for provisional waiver to obtain immigrant resident status or green card.
(Atty. Lourdes Tancinco is a partner at Tancinco Law Offices in San Francisco CA and may be reached at 1 888 930 0808 or through tancinco.weareph.com/old, facebook.com/tancincolaw or law@tancinco.com)
