Left U.S. Before Applying For Green Card? How And When Can You Return?


Goldstein Immigration Lawyers

I’m Josh Goldstein, an immigration lawyer in Los Angeles. I just got a pretty urgent email from somebody, and I wanted to explain to you exactly what they’re asking and what my answer is because I think it might be interesting for a lot of people.


The question

Here’s the question from a person we’re going to call Mr. K: “My wife and I have been married for two years. She lives with me here in the States, but she has a family member in the hospital in Canada as we speak. She needs to leave the US and go see them.

“I have not started the immigration process yet. I’m afraid that if she leaves and goes to Canada, I’ll never be able to see her again. Once she leaves the states, will she ever be allowed to re-enter the country?”

Here’s the email I sent in reply: “Are you a US citizen? Are you seeking to get a green card based on marriage?” I assumed that was the case. “What’s her immigration status, right now?”

And in return, he wrote, “I’m a US citizen. She and I got married, but I believe at that point she was past the allotted time allowed to stay in the US legally, and she’s going to go back to Canada tomorrow to be with her family, and I want to make sure there’s a chance to have her come back once she leaves.”

Boy that is a tough situation. Let me try to unpack this.


The basics

First of all, if you’re Canadian, you can just come in. You don’t need a visa. You can simply visit the US. But if you overstay the amount of time you are supposed to be here, you accrue what’s called unlawful presence.

However, if you apply for a green card through marriage to a US citizen within the US, even if you’re out of status, even if you’ve accrued unlawful presence, you can still get a green card through marriage without any need for a waiver or any complications. You can still get a green card through marriage while you’re here in the US.


The challenge of getting a green card after leaving the US

However, if you leave the US, and you depart from the US after accruing unlawful presence, depending on how much unlawful presence you’ve accrued, you may need a waiver to get back to the US, an I601 waiver.

The normal process of getting a green card through marriage if you’re outside the US involves a US consulate abroad. It’s gonna take a year or so. It’s going to take a really long time. You have a consular interview, but when you add a waiver to that, you’re going to add probably another year.

So if you leave the US and you’ve accrued unlawful presence sufficient that you need a waiver then you’re going to need to spend probably at least two years before you’ll be able to re-enter the US. And you would only be able to re-enter the US if you can get a waiver approved.

Now this presupposes that the person has accrued a lot of unlawful presence and needs a waiver. Maybe she’s only overstayed by a few weeks or a few days, and maybe she wouldn’t need a waiver, but even if she doesn’t need a waiver, it’s going to be a full year.


Additional restrictions due to COVID-19

And now we have lockdown, some quarantine and restrictions related to COVID-19, which is going to make international travel and air flights and consular appointments all the more difficult. So no matter what the circumstance is, the ability of someone to leave the US and come back in this scenario is very, very dicey.

I understand that she has a family member who’s sick, and my heart goes out to her in this situation. This is an agonizing decision. I certainly would be able to help you out with his scenario, but boy, this is a tough choice. And you would have to be clear about what you’re up against.

The person says he’s afraid that if she leaves he’ll never be able to see her again. Of course, he could travel to Canada to visit her, but I think what he’s saying is she’ll never be able to live in the US. And I think the road back to the US is going to be a challenging one in this scenario.


The easier route

On the other hand, if she were to stay in the US, and apply for a green card through marriage in the US, you would not need a waiver, and it could be relatively straightforward.

And keep in mind that when you apply for a green card through marriage, you can also apply for advance parole that gives you permission to travel internationally while the case is pending. Now it could take several months at least to get advanced parole, but it’s something to keep in mind as an option.

If you have more questions or need help, put them in the comments below or reach out to me. I’m here for you, and will do everything I can to help you out.

Josh Goldstein
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