Almost all applicants for Permanent Residence must take and pass a medical exam administered by a U.S. Civil Surgeon, which is just a physician who has been approved by USCIS for these purposes. You must ensure that the physician you use is approved by USCIS. The exam consists principally of tests for tuberculosis, syphilis, and gonorrhea, blood and urine tests, vaccinations where necessary, and a few other screenings. Results are given in a sealed envelope, but you should insist on receiving an open copy as well so that you or your attorney can review for errors in filling out the form that may cause substantial delays with your case. The forms are poorly designed, and so errors by the medical staff are not uncommon. Sometimes, conditions irrelevant to medical eligibility such as pregnancy are erroneously listed as serious health conditions that imply a need for long-term institutionalization or incapacity. It is best to catch these before submitting the results to USCIS.

Medical exams conducted outside the United States for those who are consular processing abroad are even more problematic. Staff at these facilities may aggressively question applicants about past alcohol or substance abuse, even in the far past, attempting to elicit a "confession" that can render an applicant temporarily or permanently inadmissible. Some reports state that even an admission to casual use of alcohol has led to the requirement of lengthy alcohol "counseling" before a visa can be issued. There is also an extensive inquiry into any tattoos that applicant may have as staff attempt to determine whether they represent gang affiliation. If you have any potential issues concerning alcohol, controlled substances, or tattoos you should speak in depth with an attorney to assess whether you can safely navigate this process and how best to handle any questions truthfully without creating unnecessary problems.

If you have objections to vaccines, discuss this with your attorney before advancing too far in this process. Although the law provides for religious exemptions they are difficult to obtain and require proof of a sincerely held religious belief. Objections not based on religion carry no weight at all. Pregnant applicants should also discuss the implications with their attorney to see how vaccinations and chest x-rays will be handled and whether it is best to proceed with the exam while pregnant or to wait.

In most cases, a person who entered the United States without inspection (i.e., without presenting documents to an official) cannot obtain a green card without leaving the country which runs the risk of a 10-year bar against returning). A grant of Parole in Place allows an applicant to seek a green card without departing the United States, which is safer, more convenient, and can be done with greater legal protections.
The application is discretionary, meaning that approval is not automatic. The Department will look at hardship to the military servicemember and the applicant’s history of good conduct in the community.

After being granted Parole in Place, the applicant will get work authorization but must still fulfill all other requirements for a green card. Among other requirements, a green card will only be immediately available if the applicant is the Immediate Relative of a U.S. citizen. An Immediate Relative is a spouse, a child under 21 years of age, or a parent where the child-citizen is 21 years of age or over. Those in other categories (adult or married sons/daughters of U.S. citizens, siblings of U.S. citizens, and spouses or children of lawful permanent residents (LPRs)) will usually not qualify for a green card because they are required to have never fallen out of lawful immigration status. This is a restriction that does not apply to immediate relatives as listed above.

Be aware that the future of the Parole in Place program is in question under the current presidential administration. Be sure to get the most current information before pursuing this option.

To determine whether your current or former military status could make a difference in the immigration status of your family members, always consult first with a licensed attorney experienced in immigration.

A major expansion of opportunity is opening on August 29, 2016 for immigrants who entered the United States without inspection and wish to obtain a green card through family.

An immigrant who entered the United States without being inspected by immigration officials is normally not able to obtain a green card in the United States but must travel outside the country and process at a foreign consulate. And yet, most undocumented people who depart the United States after a certain amount of unlawful presence face a 3- or 10-year bar against returning, making this option unavailable to them. Since 2013, the U.S. Citizenship and Immigration Services (USCIS) has allowed certain immediate relatives of U.S. citizens to apply for a "provisional waiver" of this unlawful presence bar, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. With an approved waiver, and assuming no other grounds of inadmissibility, the applicant can proceed to the consular interview without facing a bar. Again, the extreme hardship only counted if it affected a U.S. citizen spouse or parent.

As of August 29, 2016, USCIS is expanding the waiver, so that an applicant can also use the extreme hardship of a spouse or parent who is a lawful permanent resident (LPR). This expansion will help many would-be applicants who were held back from applying for a provisional waiver because their spouses were permanent residents who could not learn enough English to become U.S. citizens and qualify as a hardship basis.

In addition to expanding the class of persons who can be used to show hardship, the new rule also expands the class of persons who can apply in the first place. The old rule allowed applications only for immediate relatives (spouses, parents, and children under 21) of U.S. citizens. Now, a beneficiary of any family- or employment-based petitions can apply for a provisional waiver, assuming of course that the the approved petition has a current priority date and the applicant has a spouse or parent who is a US citizen or green card holder that will suffer extreme hardship in the event of denial.

The new rule is doing even more than that. Under the old 2013 Rule, USCIS would deny a provisional waiver if it had "reason to believe that the alien may be subject to grounds of inadmissibility other than unlawful presence." Many people were denied waivers because they had minor criminal convictions that may not actually have prevented them from obtaining their green cards. This happened simply because officers considered there was a remote possibility that the crimes would render the applicants inadmissible. In a sense, this was good because it protected people from leaving the United States if they had other issues (such as crimes) that would have resulted in a denial at the foreign consulate. But it also prevented some viable cases from moving forward merely because an officer incorrectly perceived a problem. Under the new rule, reason to believe other grounds of inadmissibility exist is no longer a basis for denial of the provisional waiver. But importantly, it is still true that a provisional waiver is automatically revoked if the foreign consulate discovers, at the time of the immigrant visa interview, an additional ground of inadmissibility. The change opens new possibilities but creates an even greater need for caution and consultation with an attorney.

Perhaps most excitingly, the new rule is opening the provisional waiver application to some individuals who have final orders of removal, exclusion or deportation, including an in absentia order of removal. An additional waiver on Form I-212 is necessary in these cases, and not everyone will qualify. Among other disqualified persons are those who unlawfully returned to the United States after a prior removal or prior unlawful presence of a year or more, and those who reentered unlawfully after removal and thereby received a reinstated order of removal, deportation, or exclusion.

Remember that the rule does not come into effect until August 29, 2016. This is a new avenue of relief that will help many people who were previously told there was no immigration law that could currently help them. If you think you fit into any of these categories, you should seek qualified counsel to explore your options.

It's fairly well known by now that most immigrants who entered the United States without being admitted or paroled at a port of entry do not qualify to adjust their status in the United States, even if they fulfill all other requirements. Such immigrants must attend an interview outside the U.S., and in many cases they will not be allowed back in once they leave unless they get an approved waiver which many do not even qualify for.

One group that is permitted to adjust without leaving the country is the group of individuals protected by section 245(i) of the Immigration and Nationality Act. Most people who have this protection obtained it when somebody filed a family or labor petition on their behalf on or before April 30, 2001, and they have proof of being physically present in the United States on December 21, 2000.  This physical presence requirement is not necessary for those whose petition was filed on or before January 14, 1998 or who are derivative beneficiaries (i.e., related to the person on whose behalf the necessary petition was filed. As long as the petition was "approvable” at the time of filing, the beneficiary will fall under the protection of this law and can, with the payment of a penalty fine, adjust status in the United States if they are still the beneficiary of an approved petition, have a visa available, and are not inadmissible for other reasons.

The remaining lucky few who had a petition filed on their behalf usually know that they are protected by 245(i). Less known is that their spouses or children may enjoy the same protection, and that protection can follow them even if they end their relationship with the principal beneficiary, i.e., the person on whose behalf the petition was filed.

To "inherit" the protection of 245(i), the relationship of the spouse or child with the 245(i) prinicipal beneficiary must have existed on or before April 30, 2001. Remember that one must be under 21 to be considered a child in immigration law. A person who has "inherited" the protection carries that protection even if that person later divorces or turns 21, or if the principal beneficiary dies. Of course, it is still necessary for one who has "inherited" 245(i) protection to be the beneficiary of an approved petition, have a visa available, and be otherwise inadmissible. But it is not necessary to be petitioned by someone who is protected by 245(i). For example, a woman married to a man who was the beneficiary of a petition filed by his brother in 1997 could divorce that man, and marry a different U.S. citizen. She could then adjust status in the country through her new husband because her marriage to a 245(i) beneficiary before 4/30/01 allows her to carry her 245(i) protection with her even when that marriage is over. In contrast, those whose relationship with a principal 245(i) beneficiary came into being after April 30, 2001 will only enjoy the protections of 245(i) if they adjust as dependents of that particular principal beneficiary.

If you think you might have "inherited" 245(i) protection from an earlier relationship or parent, you should speak with an immigration attorney about a path to a green card that might be easier than you had thought.​

Those who must process their green card applications outside the United States, whether because they are residing outside or do not qualify for adjustment of status within the U.S., must interview at a foreign consulate. The following information is unique to the U.S. Consulate in Ciudad Juarez, Mexico and was current in summer 2016, but it may be useful in getting a general idea of what to expect in any country. Always check with an attorney familiar with your particular consulate for up-to-date information.

Before leaving home for the consulate, review the checklist of documents you received and make sure you have everything required, making special note where originals are required and where copies are sufficient. Then make an extra copy of everything to bring with you as well. You should also speak with your attorney to make sure you have no grounds of inadmissibility that would arise at the interview, such as fraud, alien smuggling,  or certain repeat immigration violations just to mention a few examples. This is especially important if you are coming from the United States since the waiver of unlawful presence you may have just been granted will not help you if other unanticipated problems arise at the consulate. You do not want to get stuck outside the U.S. and find there is no return possible. So have a full conversation with your attorney prior to departure. 

The day prior to your interview, there will be a medical examination. This examination requires disrobing, and physicians will be noting, among other things, the presence of tattoos. Some tattoos can lead to a suspicion of gang membership and a denial on that ground. No appointment is necessary, but you must show your interview appointment letter and bring your passport. The exam includes an x-ray (applicants age 14 and under take a tuberculosis skin test instead and will have to return days later for a reading) and a physical examination. Screening by blood test for certain diseases may occur. You may have to receive vaccinations if you cannot produce records showing that you do not need them. Physicians will seek to discover, among other things, if you have a problem with drug or alcohol abuse or addiction and will refer you to a psychologist or require a urinalysis if they deem it necessary. A finding of inadmissibility for reasons of abuse/addiction will require a showing of one year of remission.

Biometrics will be taken in a center near the consulate and are required of all applicants age seven or above. Appointments for this can be made online before or after the medical exam, but it is best not to leave it for the day of the consular interview since that may not give the consular officer sufficient time to review the results.  You will need to bring your passport, DS-260 confirmation page, visa appointment letter, and ASC appointment notice.  

The interview itself is often quite brief. Applicants are issued a ticket and sit in a waiting area to be called to a numbered window where they meet with an officer.

At the end of the process you will designate the  DHL location where you want the visa package delivered, and this can take a number of days.

An important reminder: the plaza outside the consulate and clinic is full of fraudsters and con artists pretending to work for either agency. They aggressively approach applicants, sometimes wearing counterfeit badges, and try to sell services or "arrange" people's papers for them for expedited processing. Avoid these people at all costs since they could damage your case or at least steal your money. No actual employee of the consulate or the medical clinic will ever operate in the outdoors. Please do not fall victim to these scams. Equally important, seek a legitimate hotel in the vicinity of the consulate since there are also reports of scams associated with questionable accommodations.

Same-sex couples are entitled to all of the same rights and privileges as opposite-sex couples under immigration law. However, they may face special challenges when seeking a provisional waiver to excuse the alien spouse's unlawful presence in the United States. With some important exceptions, aliens who entered the United States without inspection must apply for permanent residency through an interview in their home country. These people will face a 3- or 10-year bar against returning once departed unless they are granted a waiver to excuse the time spent in the U.S. unlawfully. The provisional waiver is a remedy that can be applied for before departure and is based on extreme hardship to the U.S. spouse.

This hardship can take many forms, but for many victorious couples the core of their argument lies in the children they are raising together. Couples with children are also more likely to earn income unequally, and a stay-at-home parent has a powerful argument in the loss of income that would attend the breadwinner's removal. Statistically, a same-sex couple is less likely to have children and therefore less likely to have these arguments available.

Also, opposite-sex couples routinely invoke the support of family members and the strength of their ties. Tragically, many LGBT individuals have family members who reject their marriage or have even shunned them altogether. 

Same-sex couples must focus their attention on their own unique characteristics. Does the U.S. spouse have a history of abuse, bullying, social isolation, family rejection? That can be an extreme hardship that would be exacerbated by the thwarting of a love that has been criminalized and vilified for centuries. Is the home country of the foreign spouse dangerous for LGBT persons? Will it recognize their marriage? The progress in LGBT rights in Mexico and other Latin American countries has had the unfortunate side effect of weakening such arguments, but advocates must make clear that rights in the legislature and courtroom do not always translate to rights or even physical safety out on the streets.

Yes, the provisional waiver is available to same-sex couples, but the strategy must be tailored to a slightly different fit.