Mixed-status families are not uncommon in the United States. A couple is considered “mixed-status” when one spouse is a U.S. citizen or permanent resident and the other is an undocumented immigrant. Previously, getting married to a citizen or permanent resident would easily allow an undocumented immigrant to change their status. After 1996, it became much more difficult to apply, particularly for those immigrants who “entered without inspection”, or “EWI”. Now with the creation of a provisional waiver, it's looking like there may be some hope that it will be a little easier for an undocumented spouse to apply for their green card out of the country.

In addition, undocumented immigrants are further punished by three- or ten-year bars, if they leave the US and want to return. Overstaying for more than 180 days results in a 3-year bar, while overstaying for more than 365 days leads to a 10-year bar. Thus, families and spouses can be separated for extended periods of time, simply due to the way of how they entered the United States.

A light of hope came in 2013, as a provisional waiver was created to help those who entered illegally without inspection, or otherwise. The waiver is useful if the immigrant spouse is able to show that they and their loved one will deal with “extreme hardship” if they are separated. This hardship is taken to mean experiences that are beyond what a normal couple would encounter if they must live apart (i.e. difficulty paying rent, lack of child support). The waiver allowed undocumented spouses to leave the United States and receive an immigrant visa at the U.S. embassy of their home country relatively quickly, without waiting in the long processes they would have before.

Recently, the waiver has been updated to include parents of a U.S. citizen and Lawful Permanent adult children. In addition, other special circumstances are now eligible, such as Employment-Based, Diversity Lottery, and Special immigrant Petitions. While the situation is still difficult and requires separation from one's spouse, the time apart will be much shorter than it originally was.

Irena Mykyta is a New York lawyer. This blog is not legal advice and should not be acted upon without obtaining legal counsel. To request further information, contact Irena for a free 30 minutes consultation at [email protected]