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I'm reading this article "White House announces plan to aid longtime undocumented immigrants" and it doesn't make sense to me,

Now 33, he is a registered nurse married to a U.S. citizen in Texas who can sponsor him for a green card. They have never applied because federal law requires that Quiroz first leave the United States, with no guarantee that he may return.

President Biden announced Tuesday, with Quiroz standing beside him, that immigrant spouses of American citizens may apply for permanent residency without leaving the country, washing away their fears of being separated from their families and putting them on a path to U.S. citizenship.

I don't understand what this means even. My wife never had to leave the country when we got married. Nor when we applied for the permanent residency. In fact, the NOLO book explicitly told us NOT to leave the country until the change in status was granted, or we got "Advance Parole" approval with an I-131.

If this happened, I just don't remember it. Why is the Washington Post stating that citizens sponsoring immigrants for permanent residency have to leave the United States?

2 Answers 2

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The difference is that they entered the US illegally (i.e. without being admitted or paroled).

To become a US permanent resident (i.e. to get a green card), one must either go through Adjustment of Status inside the US, or Consular Processing at a US consulate abroad. Adjustment of Status generally requires that the person have been "inspected and admitted" or "inspected and paroled". See 7 USCIS-PM B.2. (There are some rare exceptions like INA 245(i) adjustment, or adjustment for asylees; I won't go into those.) The text of INA 245(a) says:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

For someone who entered the US legally, overstayed, never left, and is the spouse of a US citizen, the process is very straightforward as you described -- they would simply apply for Adjustment of Status inside the US. Since they are in the Immediate Relative category (spouse, parent, or unmarried under-21 child of a US citizen), they are not disallowed from Adjustment of Status for being out of status at the time of filing or for having been out of status in the past. This is summarized in 7 USCIS-PM B.8(B):

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21.

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

[...]

  • The applicant is not in lawful immigration status on the date he or she files the adjustment application;

  • The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

[...]

  • The applicant has ever violated the terms of his or her nonimmigrant status.

They do not have an unlawful presence ban under INA 212(a)(9)(B), even if they had years of unlawful presence (overstay and unlawful presence are not the same thing; but even if they did), because they have not left the US. An unlawful presence ban under INA 212(a)(9)(B) is only triggered if they have accrued more than 180 days of unlawful presence and then left the US:

Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) 3 of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,

is inadmissible.

So if they have not left the US, they do not have this ban (i.e. they are not inadmissible). No ban means no need for a waiver. So they can do Adjustment of Status without needing a waiver, and it is a very straightforward process. This is why these people are told to NOT leave the US until they have an Advance Parole or a green card -- not only would they abandon their Adjustment of Status, but they would trigger a ban if they have accrued more than 180 days of unlawful presence.

On the other hand, for the spouse of a US citizen who entered the US illegally, it's much more difficult. As I mentioned above, Adjustment of Status generally requires that they have been admitted or paroled. Since they were not admitted or paroled, they cannot do Adjustment of Status, and the only other option is Consular Processing abroad. But that requires leaving the US, and leaving the US triggers a 3-year or 10-year ban under INA 212(a)(9)(B) if they have accrued more than 180 days of unlawful presence before leaving.

An immigrant waiver for this ban is possible under INA 212(a)(9)(B)(v) only if they can show that their US citizen or permanent resident spouse or parent would suffer "extreme hardship" if they can't be in the US:

The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. [...]

They can apply for this immigrant waiver with form I-601 when applying for the immigrant visa abroad, or they can apply for a "provisional waiver" with form I-601A and get the result before they even leave the US (and before triggering the ban). In both cases, the standard is the same -- "extreme hardship", which is a very high standard to meet. As described in 9 USCIS-PM B.5, things like family separation or economic detriment are not sufficient by themselves to meet the standard of "extreme hardship". Most illegal-entrant spouses of US citizens probably cannot show that their spouse will suffer "extreme hardship", and thus cannot qualify for this immigrant waiver. Waiting outside the US for 10 years is also not palatable for most people. So they basically have no practical way of getting a green card. This is why there are estimated to be so many illegal-entrant spouses of US citizens who have been in the US for more than a decade without getting a green card.

The announced program would grant Parole-in-Place to spouses of US citizen who entered illegally, who have been physically present in the US for more than 10 years as of the announcement of the program. What this does is grant "parole" to them, so that they meet the "admitted or paroled" requirement of Adjustment of Status, just like people who entered legally. Once they are paroled, all the things I said above for people who entered legally apply -- they can do Adjustment of Status inside the US no matter how many years they may have been out of status since they are in the Immediate Relative category, they do not need to leave the US, so they don't trigger a ban, and they don't need a waiver.

This program does not grant a waiver for any ban -- as I said above, most of these people probably do not meet the standard for an immigrant waiver for this ban. Rather, this program removes the need for a waiver for these people, because it makes them eligible to get a green card without leaving the US, and thus without needing to trigger the ban in the first place. The standard for parole under INA 212(d)(5)(A) is "urgent humanitarian reasons or significant public benefit", and this is an easier standard to meet than "extreme hardship".

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  • This is a much more detailed answer than I could provide.
    – littleadv
    Commented Jun 25 at 5:09
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The problem is inadmissibility. Inadmissible individuals have to either have a waiver, or spend a period of several years (up to 10) outside the US until the ban expires.

This applies to undocumented immigrants specifically, see here:

(A) ALIENS PRESENT WITHOUT admission or parole.-

(i) In general.-An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

The proposed action basically grants the waiver (on a case by case basis) without the need to leave the country and followed by the AOS process, whereas until now the waiver application was only allowed after the person applied for a K/immigrant visa outside the US.

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  • This is a great answer, and holy crap on the Washington Post for getting all the major details wrong. So this is ONLY relevant to immigrants that enter the country illegally. If you enter the country legally, as in the case of any VISA (student, tourist, au-pair, etc etc) then even if you overstay your VISA you do not (and should not) leave the country before or during the application process. This is only relevant to those who entered without a visa. Commented Jun 25 at 0:28
  • That's right, with the exception of student visas. See on the same page, another inadmissibility criteria: (G) Student visa abusers.-An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(i) and who violates a term or condition of such status under section 214(l) is excludable until the alien has been outside the United States for a continuous period of 5 years after the date of the violation..
    – littleadv
    Commented Jun 25 at 0:40
  • You know your stuff, appreciate it. Commented Jun 25 at 0:46
  • @EvanCarroll visa is not an acronym; it's just a word.
    – phoog
    Commented Jun 25 at 6:14

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