petitioning for residency illegally entering vs. overstaying visa

[phluff127]

I am wondering if there is any difference in petitioning my spouse for residency because he came here illegally and did not enter the country with a visa and then overstay the visa. I thought it was the same, but I was just told that is not the case and that it is unlikely he will be able to obtain residency. Please help

[newacct]

I'm assuming you're a US citizen? You can petition him fine, but how he actually gets permanent residency is more problematic as he's not eligible for Adjustment of Status (whereas if he entered legally then he would be). Thus he would have to go through Consular Processing abroad, but assuming he's been here more than a year, by leaving the US he will trigger a 10-year ban. So then he would need a waiver if he doesn't want to wait outside the US for 10 years. You would need to show "extreme hardship" to you for the waiver, and it's not easy to get. Usually, the waiver must be applied for with I-601 after he's already left the country, and if he is denied, he is stuck outside. Right now, it's still possible to apply for a "provisional waiver" before leaving the US with I-601A, so he would know the decision before leaving. Hurry and gather the evidence and apply because we don't know if the provisional waiver process will be ended by this administration.

[Bayfield]

I am wondering if there is any difference in petitioning my spouse for residency because he came here illegally and did not enter the country with a visa and then overstay the visa. I thought it was the same, but I was just told that is not the case and that it is unlikely he will be able to obtain residency. Please help

Big difference is that he can not adjust status in the US and has to go through the local Consulate. He may have a ban needing a waiver.