Certain family members (spouse, minor children, parents are the highest priority and have no waiting periods or annual limits) of a United States citizen have a right to live legally in the United States. The process is really simple and fast if the family member is overseas or if she or he entered the United States legally, and even better, if she or he is still not out of status. If the family member is in the United States and entered the country illegally or has been out of status for some time, the process can be complex and slow. In addition to that the individual can be barred from entering the USA for many years, some times as many as 10 years, when he or she returns to the native country for processing of a green card at the US embassy or consulate.
Due to the ban on entering the US for years, most US citizens continue to live with an illegal spouse rather than do the paperwork for legalization. That is why a lot of the undocumented immigrants in the United States are still illegal in the country, even though they meet all the criteria for changing their status to get permanent residency. In addition to not deporting illegal immigrants for minor offenses, the Obama Administration is now allowing these family members to get a waiver so that they will not be barred from entry. As such, when they leave the US to go their native country for consular processing of their visas, they will simply need to wait for the few weeks it will take to process the paperwork.
Who is eligible and what USCIS form needs to be filled? Basically, as long as you meet all the requirements for getting an immigrant visa based on your relationship to an American citizen, you are eligible as long as you can demonstrate that the separation of the family will cause extreme hardship to a US Citizen relative. Let us say that you are a male illegal immigrant and your American wife is pregnant or has small children or is disabled, you have a strong case. What is important is that the hardship to the US citizen should be personal. For instance, if you are married to a US citizen and she does not work even though the hardship is financial, eventually it is personal. Your attorney can guide you if you can make a case by filing USCIS Form I-601A, Application for a Provisional Unlawful Presence Waiver. You will also need to notify the Department of State’s National Visa Center that you will be seeking a provisional waiver from USCIS. Obviously, you will need to pay hundreds of dollars in fees and wait for a few weeks for the paperwork to be approved, but if this was the only reason that you were reluctant to sponsor your family member for lawful permanent residency, it is time to get started.