In March, 2013 by executive order the President allowed undocumented aliens who were married to U.S. citizens to apply for waivers of inadmissibility in the United States. This order is critical to foreigners who entered the United States illegally across the border to regularize their status. While applying for the paperwork for residence all can be done while waiting for the waiver in the United States. The Presidentâ€™s purpose is to avoid a long separation between the U.S. citizen and their spouse. This allows the alien to stay here during the waiting period for the waiverâ€™s approval and then only to return for a short period for his/ her visa, it basically preserved the marriage.
An application for a waiver to reapply for readmission before 2013 required the applicant to be outside the U.S. for 10 years and he/she had to be abroad to apply.
If an alien has entered with a non-immigrant visa such as a tourist, student, or temporary employment visa such as H-1, L-1, H2-B, H-3, and overstayed, marriage to a U.S. citizen would overlook this overstay. Such was not the case for foreign nationals that entered across the border. Now a viable possibility of regularizing status is available while greatly reducing the risk of a long stay outside the country.
The U.S. citizen must prove extreme hardship if the waiver is to be granted. Many factors will be considered by the Immigration Service such as long separation from the U.S. spouse or children of the marriage; depression and other mental disabilities namely psychological and psychiatric; loss of attachment to communities and friends in the U.S.; hardship for the U.S. spouse to leave the U.S. because the U.S. citizen does not speak the language, or cannot find work in the undocumented alienâ€™s country; absence from attending to care of parents; economic deprivation as a result of the removal; dangers that exist in the undocumented alienâ€™s country by exposing the U.S. citizen spouse and children to perils that do not exist in the U.S.; Also unavailable treatments and lack of proper hospital facilities. These are all factors that would be relevant to the grant of the waiver. The Immigration Service must consider all factor by their cumulative effect. While an individual factor may not be extreme in itself, the aggregate of them must be considered to support proof of extreme hardship. The hardship to the U.S. citizen must also take into account the U.S. citizenâ€™s family ties in the U.S. such as absence from parents; the financial impact of the departure, significant health problems that can be provided in the U.S., and are not available in the undocumented country.