Accepted Answer

Dear XXXXXXXX,

 

Ok, so you already know the time line.

 

If she is not yet in Columbia, I recommend that she go there now as voluntary departure. The reason I say this is that the longer she is in her own country befor applying for the waiver, the better. With such a long overstay, she is sure to have a bar to re-entery to the u.s. in excess of 3 years.

 

She will need the waiver to inadmissibility in order to come in, even as your spouse.

 

It would be much better if you were able to get citizenship before hand and change the I-130 category to immedicate relative. That would allow her to file concurrently while still remaining in the U.S., even though she is overstayed.

 

The wavier process in Columbia is taking about 6 to 10 months.

 

Unlawful Presence (3/10 Year Bar)

• If the applicant is inadmissible because they have been unlawfully present in the United States for more than 180 days (3-year bar) or one year (10-year bar), they may apply for a Waiver of Ground of Inadmissibility on Form I-601
• It is important to note that an applicant MAY NOT BE ELIGIBLE to apply for this waiver of inadmissibility if they were unlawfully present in the United States for more than one year, left the United States, then returned without being admitted or paroled (EWI).
• The applicant must establish that their U.S. citizen or legal permanent resident spouse, parent, or the K visa petitioner would suffer extreme hardship if the application were denied.
• There are special instructions for TPS and VAWA self-petitioners applying for a waiver of this ground of inadmissibility.

^{You might also wait until after any new immigration law is passed to see if there is a route to legalization that will be quicker and easier.}

 

 

Expert:	BizMatters
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Accepts:	534
Answered:	7/18/2009

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JD -NYS Bar