Marriage does not cure an entry without inspection. When Form I-485 is closed, which exceptions exist, and how the 3- and 10-year bars and Form I-601A work.
Reviewed by Ekaterina Fitenko, Esq. — Florida Bar #1064536. With 20+ years of experience in the legal field, she reviews entry history and waiver options for Russian- and Ukrainian-speaking couples before anything is filed, in English and Russian.
In most cases, no green card can be issued inside the United States to a spouse who entered without inspection, even when the marriage is real. INA 245(a) allows adjustment of status only for a person who was "inspected and admitted or paroled," and a wedding does not change how you arrived.
The route that usually remains is longer. The citizen files Form I-130, the spouse applies for an immigrant visa at a consulate abroad, and before leaving the spouse tries to obtain a Form I-601A provisional waiver of the unlawful presence bars. A small group of people have an exception that keeps the case inside the country, and finding out if you belong to it comes first.
Order matters here. Filing the wrong form or leaving the country at the wrong moment can make the case worse, so the entry history gets reviewed before anything goes to USCIS.
Because the inspection requirement must be met before the application is filed. USCIS Policy Manual, Volume 7, Part B, Chapter 2 says that if the person was not inspected and admitted or paroled before filing, "the officer must deny the adjustment application." The officer has no discretion to overlook it.
The confusion comes from a real rule that covers a different situation. Under 7 USCIS-PM B.8, an immediate relative of a U.S. citizen may adjust even after an overstay, a period without status, or work without authorization. That exception lifts the bars in INA 245(c). It does not touch the entry requirement in INA 245(a).
So two spouses of U.S. citizens can have opposite results. The one who arrived on a B-2 visa and stayed seven years past the I-94 can usually file; our article on overstay and marriage to a citizen covers that case. The one who crossed between ports of entry a month ago generally cannot.
Form I-130 is a different matter. The citizen may file it whatever the manner of entry, because the petition proves the relationship. USCIS decides it without discretion, and under 6 USCIS-PM B.5 it "accords no immigration status nor does it bar removal." An approved I-130 therefore does not protect the spouse.
Often this is the question that decides the case, because the legal meaning differs from what people assume. Under 7 USCIS-PM B.2, a person who presents himself or herself in person to an officer at a port of entry generally meets the inspection requirement, and a cursory inspection still counts as an admission. The burden of proving it stays on the applicant.
| How you arrived | Treatment under 7 USCIS-PM B.2 |
|---|---|
| Crossed away from a port of entry, no officer involved | Not inspected. INA 245(a) is not met. |
| Presented yourself at a port and an officer let you through after a brief look | Generally inspected and admitted, if you can prove it. |
| Admitted at a port on false documents | Admitted, even if by fraud. Fraud is a separate problem under INA 212(a)(6)(C). |
| Claimed to be a U.S. citizen at the port | Treated as an entry without inspection, and not an admission. |
| Paroled, with a parole stamp in a passport or on Form I-94 | Meets the "inspected and paroled" requirement. |
| Released from custody on conditional parole | Does not meet the requirement. |
| Entered without inspection and later received TPS | TPS by itself is not an admission for INA 245(a). |
Evidence is what separates these rows in practice. The Policy Manual lists Form I-94 as the most common proof of admission and also accepts a passport admission stamp that DHS systems can verify. A release paper from the border needs a close reading, because conditional parole and parole under INA 212(d)(5) are different things even when people call both "parole."
Your A-file may record the entry differently from your memory of it. For a person who was processed by the Border Patrol or who filed an earlier application, we read that record first; a FOIA request for the file is often the starting point.
Policy Manual Volume 7, Part B, Chapter 2 names two groups who do not need inspection at all: INA 245(i) applicants and Violence Against Women Act applicants. A third door, parole in place, supplies the missing parole. Each is narrow.
INA 245(i). You qualify as a grandfathered person if a family or employment petition or a labor certification was properly filed for you on or before April 30, 2001, and was approvable when filed. If that filing came after January 14, 1998, the principal beneficiary must also have been physically present in the United States on December 21, 2000. Under 8 CFR 245.10 a spouse or child of that beneficiary can be covered too, so check old filings made for a parent or a former spouse. The applicant files Supplement A to Form I-485 and pays the additional sum the statute requires.
VAWA. INA 245(a) separately covers a person with an approved VAWA self-petition. If your citizen spouse has battered you or subjected you to extreme cruelty, the entry requirement does not apply to the adjustment that follows an approved self-petition.
Parole in place. USCIS states in 7 USCIS-PM B.2 that it grants parole in place "only sparingly." Being the spouse, child or parent of an active-duty service member, a member of the Selected Reserve, or a veteran ordinarily weighs heavily in favor of it, absent a criminal conviction or other serious adverse factors. The parole must be granted before Form I-485 is filed; it cannot rescue an application filed earlier.
Passing through one of these doors does not end the review. As of November 2026, USCIS memorandum PM-602-0199 of May 21, 2026 treats adjustment as discretionary relief and calls avoiding the consular process an adverse factor; our article on the memorandum explains how far that reaches.
Leaving is what triggers the bars. Under INA 212(a)(9)(B), a person who was unlawfully present for more than 180 days but less than 1 year and then leaves voluntarily is inadmissible for 3 years. A person unlawfully present for 1 year or more is inadmissible for 10 years from the departure. Time before age 18 does not count.
A spouse who has lived here without status for a year or more has already crossed that line, so a departure without a waiver in hand means a 10-year bar at the consulate. The marriage does not suspend it.
The waiver itself is in INA 212(a)(9)(B)(v). It requires extreme hardship to a "citizen or lawfully resident spouse or parent." The citizen spouse in your case is that qualifying relative. A U.S. citizen child is not named in the statute, so hardship to a child counts only through its effect on the spouse or parent.
Form I-601A lets the spouse ask for the unlawful presence waiver while still in the United States, so that the departure happens with a decision already in hand. The rules are in 8 CFR 212.7(e). The sequence runs as follows:
Extreme hardship is proved by a preponderance of the evidence. Under 9 USCIS-PM B, the common consequences of separation are not enough by themselves, and the factors are weighed together: medical conditions, finances, country conditions and the spouse's own ties. Our Form I-601A guide goes through the evidence.
Form I-601A carries limits that people miss. It gives no status, and under 8 CFR 212.7(e)(2)(ii) a pending or approved waiver supports no work permit and no advance parole. It covers only the unlawful presence bars. Under 8 CFR 212.7(e)(14) the approval is revoked automatically if the consular officer finds any other ground of ineligibility, and that finding comes when the spouse is already abroad.
The most serious case is the permanent bar in INA 212(a)(9)(C). It applies to a person who was unlawfully present for more than 1 year in total, or who was ordered removed, and who then entered or tried to enter again without admission. Form I-601A does not reach it, because the applicant must be inadmissible only under 212(a)(9)(B). The statute's exception requires more than 10 years outside the United States and consent to reapply.
A second crossing is how this bar is reached. Two entries without inspection, with more than a year of unlawful presence before the last one, should be treated as a stop sign until a lawyer has read the dates.
Under 8 CFR 212.7(e)(4), a person also cannot use Form I-601A if he or she:
The last item catches people who filed Form I-485 first "just to try." Other inadmissibility grounds, such as fraud or certain criminal records, need their own analysis and sometimes a different waiver.
The main risk inside the United States is a Notice to Appear. Under USCIS memorandum PM-602-0187 of February 28, 2025, USCIS "will issue an NTA" when an unfavorable decision on a benefit request leaves the person not lawfully present. A spouse who entered without inspection and files a Form I-485 that must be denied fits that description as of November 2026.
Form I-130 carries exposure as well. Under 6 USCIS-PM B.5, as updated August 1, 2025, USCIS "may issue" a Notice to Appear when the beneficiary of a family petition is removable. This is a reason to plan the sequence with a lawyer before filing. It is also why a marriage during removal proceedings needs separate care: INA 204(g) requires clear and convincing evidence of a good-faith marriage for that petition to be approved.
The consular side has moved too. As of November 2026, the federal court in CLINIC v. Rubio (S.D.N.Y., August 21, 2026) has vacated the State Department's pause on immigrant visas for 75 countries, a list that included Russia, Belarus, Kazakhstan, Uzbekistan, Georgia, Armenia, Moldova, Kyrgyzstan and Azerbaijan but not Ukraine. The government told the court that posts were instructed the policy is no longer in effect. The appeal is pending in the Second Circuit, and the part of the order returning individual refusals has been stayed for now.
Proclamation 10998, in effect since January 1, 2026, keeps immigrant entry suspended for nationals of Turkmenistan, and as of November 2026 it has no exception for spouses of U.S. citizens. Section 6(a) limits it to people outside the United States on its effective date without a valid visa, so a Turkmen national should have that text read against his or her own facts before any departure.
Income still has to be shown. Form I-864 is required, and as of November 2026 the public charge rule in effect since September 18, 2026 treats the absence of a sufficient Form I-864 as enough by itself for a finding of inadmissibility. See our marriage green card page for how the sponsor's side of the case is prepared.
In a marriage case, Form I-130 alone starts at $2,000, and Form I-130 with Form I-485 starts at $4,000. A case that needs a waiver strategy or involves removal proceedings is complex, and that fee is set by agreement after we have seen the file. The full fee schedule is on our legal fees page.
Our initial consultation is $200 for 30 minutes. It is paid by card through a payment link before the meeting and is always credited toward your fee. We meet by Google Meet, by phone, or at our office at 11555 Heron Bay Blvd, Suite 277, Coral Springs, FL 33076. Our second office, at 600 Three Islands Blvd, Hallandale Beach, FL 33009, sees clients by prior appointment only. We take clients from other states and other countries and work with them by Google Meet.
The first step is the intake questionnaire at fitenkolaw.com/intake, so the attorney sees the facts before you speak. You can also call (305) 315-3425 or write to fitenkolaw@gmail.com. USCIS filing fees are separate from our fee; the current amounts are on Form G-1055. No lawyer may promise you a result, and we do not.
For this topic, bring the facts that decide the route: every entry and exit with dates, any encounter with Border Patrol or an immigration court, and every petition ever filed for you or a parent.
Generally no. INA 245(a) requires inspection and admission or parole before filing, and USCIS Policy Manual Volume 7, Part B, Chapter 2 says the officer must deny the application otherwise. The exceptions are INA 245(i), an approved VAWA self-petition, and parole in place granted before filing.
No. INA 245(a) sets no length of marriage or residence that replaces inspection, and the requirement reads the same in year ten as in year one. Long marriage and U.S. ties matter as evidence for extreme hardship on Form I-601A, and as positive factors where USCIS exercises discretion.
Not directly. INA 212(a)(9)(B)(v) requires extreme hardship to a citizen or lawfully resident spouse or parent, and a child is not named. The effect of a child's situation on the qualifying spouse can be part of the evidence, but the waiver rests on the spouse or parent.
That plan usually fails. Leaving after more than 180 days of unlawful presence triggers the 3-year or 10-year bar under INA 212(a)(9)(B), which blocks a visitor visa as well. If you then re-enter without admission after more than 1 year of unlawful presence, INA 212(a)(9)(C) adds the permanent bar.
Not on the basis of that form. Under 8 CFR 212.7(e)(2)(ii), a pending or approved Form I-601A does not support an application for employment authorization or advance parole, and USCIS rejects such an application. The waiver gives no status at any stage.
Then Form I-601A is generally closed, because 8 CFR 212.7(e)(4) excludes people in proceedings that are not administratively closed. A marriage entered during proceedings also falls under INA 204(g) and requires clear and convincing evidence of good faith. Do not leave the United States or file anything before a lawyer reads the court file.
$200 for 30 minutes, paid by card before the meeting and always credited toward your fee. Start with the questionnaire at fitenkolaw.com/intake, or call (305) 315-3425.
This article is informational only and is not legal advice. USCIS policy, court orders, form editions and fees change; confirm current requirements with USCIS and the Department of State before acting. Reading this page does not create an attorney-client relationship.
Fitenko Law PLLC, 11555 Heron Bay Blvd, Suite 277, Coral Springs, FL 33076 (main office); 600 Three Islands Blvd, Hallandale Beach, FL 33009 (by appointment only). Phone: (305) 315-3425. Email: fitenkolaw@gmail.com