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(#69-12/01/97)
Applying for a green card by illegal aliens
I have a green card and I filed a relative petition for my wife. The "priority date" is not current. She has remained in the US since January 1995. At that time she was admitted for only 90 days with visa waiver. Can you update me as to whether or not she will be able to get her green card.
Answer:
Section 245(i) of the Immigration and Nationality Act allows eligible aliens who have a current immigrant visa number available but who are unlawfully present in the US to remain and apply for their green card in the US with the payment of a $1000 penalty. However, Congress recently decided that it only applies to a certain aliens. Section 245(i) now only applies to aliens who applied for immigrant visas to the INS or for Labor Certification to the Labor Department before January 14, 1998. Please note that aliens will still have to wait for their "priority date" to become current before applying for adjustment of status.
If your wife does not depart the United States until after she gets her green card then your wife should be able to get her green card in the United States through the "adjustment of status" procedure.
Adjustment of status is very important for aliens who have been "unlawfully present" in the United States for 180 days or more since April 1, 1997 and depart the United States. If our wife departs the US now she would need to obtain a "waiver" and prove "extreme hardship," if the waiver is not granted to you before she would be eligible for her green card. The penalty increases to 10 years for aliens who remain "unlawfully present" in the US for 1 year or more since April 1, 1997 and depart.
Another solution you should consider is becoming a US citizen. If you have had your green card for 4 years and 9 months you can apply for US citizenship. Citizenship takes about 1 year in Los Angeles. Spouses of US citizens who entered the US legally, but overstayed or "violated their visa status" (i.e. by working without permission or not going to school) can apply for adjustment of status without using section 245(i).