We last left Adrienne in a difficult position. She was a newlywed immigrant from France who had spent the previous two years "out of status" and working without authorization in the U.S. Adrienne was unsure whether she would be able to remain in the U.S. permanently with her new husband.
Wisely, Adrienne asked a local immigration attorney to evaluate her case.
Adrienne's first question was: Would the fact that she had accumulated unlawful presence affect her ability to obtain a green card?
The answer was, in her case, no. This is for three reasons.
First, Adrienne did not accumulate any unlawful presence during her first stay here in the U.S. She entered lawfully - with a J visa. She then transitioned to the H-1B visa while still in J status. She left the country immediately after she was laid off from the translation company that had sponsored her for the H-1B. Therefore, during that first visit, which lasted over 4 years, Adrienne was always in lawful immigration status.
Second, the next time Adrienne entered the country, she did so lawfully, using a B-2 visitor's visa.
Third, after her second entry Adrienne remained in the U.S. for two years and then married Brian, a United States citizen.
These three factors made Adrienne eligible to apply for a green card at that time, without having to return to France and apply there or apply for a waiver of a bar to admissibility.
Had Adrienne done things differently, her case would have been more complex. For example, if Adrienne had accumulated more than six months of unlawful presence during her first stay here in the U.S., for example by remaining in the country for more than six months after she was laid off from her job before returning to France, then she would have been subject to a bar to admissibility. She would have been required to apply for a waiver of this bar and to demonstrate extreme hardship to her U.S. citizen spouse Brian.
Adrienne's second question was: Did the fact that she had worked in the U.S. without authorization change things?
The answer was, again, no. While prior unauthorized work can prevent someone from "adjusting status" or obtaining their green card while in the United States, this rule does not apply to someone applying for a green card through her U.S. citizen spouse. This is true as long as the person did not make a "false claim to U.S. citizenship." In Adrienne's case, she did not make a false claim because she never used a U.S. citizen's social security number or claimed to be a U.S. citizen on any employment paperwork.
Adrienne was relieved. She could apply for a green card from right here in the United States!
She just had to learn how to get the process started. To be continued . . .