Adjusting through marriage with an EWI

I've read articles about this and everywhere I see that if you want to adjust with an EWI, you have to go back to your home country's consulate for your green card interview, where you will be penalized for your illegal presence in the U.S. and get banned from entering for an amount of years, depending on how long you stayed.

I'm wondering how my cousin was able to adjust since he EWI'd and lived here illegally for 5 years, he got married to U.S. citizen and sent his applications, and then went back to Mexico for his interview and 3 months later he was back in the U.S. legally. Why wasn't he penalized for his illegal presence?

Did he have his I-601 approved?

Now that I've done some research, most likely yes. But I don't know what "hardship" he used to prove that he needed to be in the U.S.

One of two: Either I-601A waiver, or he didn't accrue enough illegal presence to trigger a re-entry ban.


Basically there's 3 ways to get a green card via marriage after an EWI:

1) Advance Parole loophole: You have DACA, Temporary Protected Status (TPS), or Deferred Enforced Departure (DED). You request advance parole due to a need for travel (e.g. sick relative, school trip, or business trip). You get it, go do the trip, return to US. Now you're what's known as an "arriving alien" and you can adjust status in US since you meet the "lawfully admitted or paroled" requirement in INA 245(a). Travel on Advance Parole no longer triggers a re-entry ban as of August 2015 where BIA has ruled so in Matter of Arrabally and Yerrabelly.

2) I-601A waiver: This one is somewhat new, dating back to January of 2013. It's an extension of the previous extreme hardship waiver (I-601). Unlike I-601, you can seek this one before leaving the US. However it has additional requirement: You need to have an approved immediate relative petition, you need to have a US citizen spouse or parent, and not be subject to ongoing removal proceedings or a final order (administratively closed proceedings are fine), or subject to voluntary departure. If the waiver is approved then your previous illegal presence is forgiven by the time you attend the consular interview at a US consulate. The waiver is approved only tentatively so if you are inadmissible for other reasons you will still trigger the 10 year ban once the consulate denies you, as such you'll require the I-601 (and possibly I-212) for the 10 year ban, and for the other reason. Assuming a waiver is available.

3 I-601 waiver: This is the old waiver, generally not recommended unless it's your only option. In this case you need to leave US, attend the consular interview, then you can seek the waiver, so you're basically stuck outside US for roughly a year. On the other hand you can seek this waiver even after removal (however in this case you'll also need an I-212). Also the qualifying group is much larger namely you do not have to have an immediate relative petition. This waiver is available to principals of IR, F1, F2A, F2B, and F3 categories. Derivatives can seek it after the principal becomes a permanent resident.

Of course it's harder to prove extreme hardship to a US citizen parent if their married 34 year old daughter won't be allowed back than it is in cases of spousal sponsorship.

In both cases of I-601 and I-601A you need to demonstrate that your absence will cause "extreme hardship" to your qualifying relative.


"extreme hardship" is not a term that is defined in US immigration law. It just floats around but it's really up to the interpretation. This administration has been very lenient, and since there isn't a set in stone definition they can stretch it as far as they want, within reasons of course.

I have been here since 2001 and I am married to a us citizen. I have my visa appointment this month. If i got to do it all over again I would just apply for advance parole and go through the process here, but because I had no money I really did not know I could do that till recently. I've spent so much time in money in this process now I am not going to start all over.
1. apply for advance parole
2. come back and do your adjustment of status