Cases that involve foreign nationals who entered the United States illegally are difficult. First, it is important to define what it means to be illegal. For immigration law purposes, a person who is an illegal alien is one who entered the country without inspection by an immigration officer. Simply put, this means someone who snuck across the border.

There are two immigration laws which make these cases difficult. First, illegal immigrants to not qualify for adjustment of status. This means that they must return to their country to apply for an immigrant visa. The second law, commonly referred to as the 3/10 bar, provides that anyone who has been in the U.S. unlawfully for more than 180 or 365 days is barred from returning for 3 or 10 years respectively.

Thus, the problem is that in order for the unlawful spouse of a U.S. Citizen to gain lawful permanent residency he or she will have to return to his or her country. Even if an immigrant visa is available and granted the 3/10 year bar will prohibit the spouse from obtaining a visa to return to the U.S. legally.

There are waivers available for the 3/10 year bar but they can be difficult to obtain and there is no guarantee in any case that a waiver will be granted.

This places families in a very difficult position because in order to obtain lawful status the foreign national spouse will have to depart the United States and remain there during the visa application which can take a year or more. Furthermore, at the end of the process, if he or she is unable to obtain a waiver of the 3/10 year bar the spouse will not be able to return to the U.S. until expiration of the 3 or 10 year period.

For many couples, this is not a realistic or viable solution. Unfortunately, it is the only option currently available. I am hopeful that our legislature will address this issue and other immigration law issues in the near future but for the time being we are all stuck with these rules.

If your spouse entered illegally but was the beneficiary of an immigrant visa petition filed on before April 30, 2001 he or she maybe able to adjust his or her status pursuant to a section of the Life Act commonly know as 245(i).