Legal Question in Immigration Law in Massachusetts

Can't Meet Income Requirements to sponsor my spouse, what to do ?


I'm a male from the u.s. and I married a girl from korea about 6 month ago, she entered legally on a j-1 visa with NO RESTRICTIONS, but is no longer working so it ''out of status''.

I do not meet the minimum income guidelines as I only make about 10K a year.

We have spent the last 6 months trying to find a co-sponsor, but were unable to find someone who was willing and met the income requirements.

Now, my wife has accrued more then 180 days being ''out of status''. She has been ''out of status'' for about 185 days now.

Would it be better if she were to return to Korea until I can earn enough money or find a co-sponsor ?

Or should she stay here illegally until we can find one ?

My Wife definetly does not want to leave the country for more then 2 years.

I believe uscis told me that she will be banned from re-entering the country for 3 years if she has accrued more then 180 days ''out of status''...

I guess my main question is: is there anyway around the 3 year ban on re-entry (a waiver ?), seeing as how we were trying to find a way to file the paperwork correctly but couldn't meet the income requirements ?

My deep appreciation for anyone who can advise me on this issue, and if i can afford an attorn

Asked on 4/10/08, 2:06 am

2 Answers from Attorneys

Melina Merino Attorney Melina Merino

Re: Can't Meet Income Requirements to sponsor my spouse, what to do ?

Because she has accrued more than 180 days of illegal presence, she will be banned from returning to the USA in 3 years if she were to leave the country and you were to petition her abroad. If she accrues more than a year of illegal presence, she will be banned from re-entering in 10 years. Because she originally entered legally with a J-1 visa not subject to the 2 year residency requirement (assuming your information is correct), then you could technically submit a marriage-based visa petition at any time, so long as you are able to overcome the income requirements of the I-864 or find a co-sponsor before you are scheduled for your wife's adjustment of status interview (which is typically scheduled 6-12 months after filing). If you were to petition for her abroad and submit a waiver, it would have to be a very strong and well documented one showing that you would suffer extreme hardship should she be denied re-entry in less than 3 years. These waivers are hard to prove and their adjudication is discretionary based on the consulate abroad's determination. Additionally, they usually take about a year or more to process from the time of filing your petition. You would have to take all these factors in consideration in determining what you will do. If you have any questions or would like to discuss your case further, feel free to contact me.

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Answered on 4/10/08, 3:30 pm

Michael Cho Law Offices of Michael Cho

Re: Can't Meet Income Requirements to sponsor my spouse, what to do ?

It's best to find a joint-sponsor and apply as soon as possible.

Should she leave the country, she will absolutely be subject to the 3 year bar (and possibly the 10 year bar once 1 year of unlawful presence has been accrued) - which means going through the waiver process.

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Answered on 4/11/08, 2:02 am

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