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If a foreign national enters the U.S. legally but later falls out of status due to “overstaying” past the expiration of his or her visa or by violating its terms, he or she can normally – though perhaps not always -still obtain permanent residence based upon marriage to a U.S. citizen without having to first leave the US and perhaps becoming subject to the three- or ten-year bar to reentry.
However, if the person entered the U.S. without inspection and admission by an immigration officer, and is not eligible for 245(i) by virtue of having some element of an approvable-when-filed permanent residence case on file before April 30, 2001, then the foreign national cannot Adjust Status here in the U.S. and thus are only eligible to process for the final stage of a green card through the consulate in their home country…possibly becoming subject to those three- or ten-year bars by doing so.
There are waivers which may be available for those subject to a three- or ten-year bar based upon hardship to a US citizen spouse or parent – there is even a relatively newer waiver process where the waiver can be adjudicated (decided) in the US before the person has to leave.
But, at the end of the day the person in this situation will need to leave to process through the consulate abroad for permanent residence. Even if a foreign national is in valid status, has entered legally before falling out of status, or is 245(i)-eligible, they may still not be eligible for permanent residence. Several grounds of inadmissibility exist which may prevent a person from getting a green card, including but not limited to certain prior criminal acts, inability to financially support oneself, health issues, an unresolved two-year home residence requirement from a J-1 visa, or prior membership in certain organizations among other things. For some of these obstacles, waivers or other means of coping may be available, while others will serve as permanent bars and even marriage to a citizen – even hardship to that citizen – won’t help.