Many people come into the United States illegally every day. That does not surprise anyone. However, many of these people who come into the United States now have American families. But thankfully, there are procedures to take for those who find themselves in such a predicament. Immigration law provides waivers for immediate relatives of US Citizens, which could allow an undocumented alien to obtain legal status in the United States. Below are the requirements and steps needed in this process:
If yes, there may be hope for you to obtain legal status in the United States. However, who is considered an immediate relative according to the eyes of the law differs greatly than who is considered an immediate relative in the eyes of the general public. According to immigration law, an immediate relative of a USC is the spouse, unmarried minor child, or parent (assuming the USC child is over the age of 21) of the USC. If you meet the definition of this, you are one step closer to having legal status. Also, please be mindful that this is subject to change if and when DAPA comes into effect.
This step is pretty self-explanatory.
This step can be tricky and, in fact, a little intimidating. Do you have such an approved petition or not? Well, if someone files an immediate relative petition (or a Form I-130) for you, then the authorities will know where you are, right? Well, the answer is yes. However, like other immigrants who come into the U.S. on a family-based petition, certain criteria must still be met.
This step provides potential immigrants with their visas. After you received an approved Form I-130, you will need to choose an agent for the DS-261 form and pay the invoice fee. The agent can be you, your spouse, your attorney, etc. After this, you will need to complete the DS-260 form. In this step, you will need to collect various documents, such as proof of your relationship with the USC, and prepare for your interview. However, you still must attend the interview abroad. This process is explained more fully below.
This step is more complex than it sounds. What do you mean by unlawful presence? Does the length of time that I was unlawfully present matter? Well, the bulk of this answer rests with the answer to the second question: Does the length of time that I was unlawfully present matter? The answer is "yes." Some people may come into the country for a short period of time and leave. However, in order to qualify for a Provisional I-601A Waiver, dates matter! If you have over 180 days, but less than 1 year of unlawful presence in the United States during a single stay, or have been unlawfully present in the U.S. for over a year during a single stay, then you could qualify for a Provisional Waiver.
The answer to this question is maybe, maybe not. The test now is whether denying the visa would result in extreme hardship to the USC relative. This can be difficult to show. However, some examples of extreme hardship include the length of time the USC spouse and petition beneficiary have been married, health-related issues of the USC spouse, emotional and economic factors that could result from a separation, the moral character of the petition beneficiary, and dangerous living conditions the USC spouse would face if he/she wants to join his/her spouse in the other country, just to name a few. As this is a high level to prove, it is important to start collecting evidence early in the process to show the extreme hardship. One such way is to collect news articles from the area from which the petition beneficiary lived to show extreme hazards and living conditions that could endanger the USC spouse.
To be short, no. You still need to have leave the country for your visa interview. However, you can depart the country with more assurance that your visa petition will be approved and that you will be in a better position to be able to re-enter the U.S legally.