For individuals with prior immigration violations—especially those who have triggered the 10-year unlawful presence bar under INA §212(a)(9)(B)(i)(II)—the path to permanent residency can appear closed. Yet, in certain cases, individuals lawfully re-enter the U.S. on a nonimmigrant visa with a §212(d)(3) waiver and later marry a U.S. citizen, raising the question: Can they now adjust status, and if so, how?

This article outlines how this situation arises, why it’s rare but legally sound, and how best to navigate the adjustment process given the active 10-year bar.

I. How This Scenario Arises: A Rare But Viable Path

It’s relatively uncommon for someone subject to a 10-year bar for unlawful presence to receive a §212(d)(3) nonimmigrant waiver and be allowed back into the U.S. The statute provides broad discretionary authority to waive most grounds of inadmissibility for temporary (nonimmigrant) entries. However, U.S. consulates and CBP officers apply this authority sparingly.

In practice, the waiver is most often granted when the U.S. has an interest in the applicant’s presence, especially in the context of business investment, international trade, or diplomatic policy. A common example is an E-2 investor from a treaty country who:

• Previously overstayed a visa (triggering the 10-year bar),
• Departed the U.S. and applied for a new E-2 visa,
• Presented a compelling case (e.g., business employs U.S. workers, has substantial investment),
• Was granted a 212(d)(3) waiver by the consulate in conjunction with the E visa.

The U.S. benefits economically or politically from their presence, tipping the discretionary balance in their favor.

This lawful admission creates the conditions for adjustment of status under INA §245(a)—but the underlying inadmissibility due to unlawful presence remains unresolved.

II. Legal Background: The Limits of 212(d)(3)

A §212(d)(3) waiver is temporary and nonimmigrant in scope. It does not “cure” the inadmissibility for immigrant purposes. While it permits lawful admission for a nonimmigrant stay, it does not forgive the underlying bar for purposes of obtaining a green card.

Therefore, an individual in this position, even if lawfully present under an E-2 or B-1/B-2 visa, is still inadmissible for adjustment of status under INA §212(a)(9)(B) unless:

• They have remained outside the U.S. for 10 years since the triggering event (not the case here), or
• They receive an immigrant waiver under Form I-601. The Solution: Adjustment of Status with Form I-601 Waiver
• When the applicant marries a U.S. citizen and seeks to adjust status under INA §245(a), USCIS must examine all applicable grounds of inadmissibility. Since the applicant triggered the 10-year bar by accruing >1 year of unlawful presence and departing, they are inadmissible under 212(a)(9)(B)(i)(II).

In this scenario, they must file a Form I-601 waiver with their AOS application to overcome the inadmissibility.

The waiver requires:

• A qualifying relative (in this case, the U.S. citizen spouse),
• A showing of extreme hardship to that spouse if the applicant is denied admission.

Evidence may include medical, financial, psychological, and country condition documentation, among other factors.

IV. Strategic Timing: When Should the Waiver Be Filed?

A common strategic question arises: Should the I-601 waiver be filed with the adjustment application, or only after USCIS requests it?

Parallel Filing: When Waiver Is Clearly Needed

In cases like the one described here, the inadmissibility ground is clear and unambiguous: the 10-year bar applies, and the individual has not yet satisfied it by remaining outside the U.S.

In such cases:

• There is no ambiguity about whether a waiver will be required.
• Filing I-601 concurrently with the I-485 avoids delay.
• The waiver is adjudicated in parallel with the adjustment application, potentially shaving months off the overall processing time.
• The applicant becomes a lawful permanent resident sooner if the waiver is granted.

This approach is especially appropriate when the applicant and attorney agree that the legal and factual record guarantees a finding of inadmissibility, and there is no reasonable prospect of avoiding the need for a waiver.

Deferred Filing: When Waiver Need Is Unclear

On the other hand, if there’s some question as to whether the applicant is inadmissible, deferring the waiver may be the prudent course. For example:

• If the client was a minor during the unlawful presence period,
• If the period of unlawful presence was ambiguous (e.g., D/S notation),
• If the 10-year bar may have already expired due to time spent outside the U.S

In those cases, it is often wise to wait until USCIS issues a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) before filing Form I-601. This approach:

• Saves time and resources if no waiver is ultimately required,
• Allows a more focused waiver submission tailored to USCIS’s specific findings.

But in cases involving a confirmed 10-year bar and lawful nonimmigrant entry with a 212(d)(3) waiver, filing the I-601 at the outset is usually the better strategy.

V. Practical Filing Structure

An optimized adjustment package in this scenario typically includes:

1. Form I-130, filed by the U.S. citizen spouse
2. Form I-485, application for adjustment of status
3. Form I-765 and I-131, for work and travel authorization (if needed)
4. Form I-601, waiver of inadmissibility
5. Waiver package, including:
   • Legal brief explaining the inadmissibility and waiver eligibility
   • Documentary evidence of extreme hardship to the U.S. citizen spouse
   • Immigration history, including prior unlawful presence and lawful readmission
   • Evidence of lawful current status (e.g., E-2 entry)

This approach allows all components to be reviewed together and avoids serial adjudications, which cause delay.

VI. Final Considerations and Warnings

While this path is legally sound, a few cautionary notes:

• If the applicant previously reentered without inspection after triggering the 10-year bar, they may be subject to the permanent bar under INA §212(a)(9)(C), which cannot be waived from inside the U.S.
• If there was a prior removal order, an I-212 (permission to reapply) may also be required.
• If there is a misrepresentation or fraud finding, that too requires a separate waiver (also on Form I-601).
• No criminal history or additional grounds of inadmissibility should be assumed; every case requires full vetting of the facts.

Conclusion

Adjustment of status from within the U.S. following admission with a 212(d)(3) waiver is possible, but must be carefully structured. The key is recognizing that the underlying inadmissibility persists despite lawful admission and must be affirmatively waived using Form I-601. Where the 10-year bar is clearly in effect, it is typically advantageous to file the waiver alongside the adjustment application to avoid delay and reach lawful permanent residency sooner.

For clients with investment-based nonimmigrant status, this path may be not only viable but also strategically wise — provided the waiver is approached with a clear legal theory, detailed factual support, and realistic assessment of hardship.

At our office, we know how long and emotionally difficult the immigration process can be—particularly when you’re applying for a family-based or employment-based visa after a U.S. petition has already been approved. By the time you attend your interview at a U.S. embassy or consulate abroad, you’ve likely already waited years.

So, it can be alarming to hear the consular officer say your visa is “refused” under INA § 221(g)—or to check your case online and see that dreaded word: “Refused.” Many clients think their case is over. But in most cases, this isn’t a denial at all.

Here’s what’s really going on—and how we can help.

What Is a 221(g) Refusal?

Under section 221(g) of the Immigration and Nationality Act, a consular officer is required to either approve or refuse a visa at the time of the interview. But that refusal doesn’t always mean you’ve been denied. Instead, a 221(g) is a “soft refusal”—a procedural hold while the consulate waits for more information or completes additional review.

In these situations, the case is placed into “administrative processing.”

This is not a final denial. It simply means the officer couldn’t issue the visa on the day of the interview.

Why Was My Case Refused Under 221(g)?

A 221(g) refusal often means that one or more of the following is needed:

• Additional civil or financial documents (e.g., marriage certificate, police clearance, updated I-864)
• Clarification or explanation of facts (e.g., employment duties, relationship history)
• Internal U.S. government background or security checks
• Time to verify the petitioning employer or evaluate complex case history

In some cases, the officer will provide you with a written notice listing the exact items needed. In other cases, your case will simply move into administrative processing with no specific instructions.

What We Do to Help You After a 221(g)

When you receive a 221(g) refusal, we step in immediately to help you move the case forward. Depending on what is needed, we will work with you to gather and submit any required documents, explanations, or evidence. We’ll communicate with the consulate when appropriate, and monitor your case status via the State Department’s CEAC system.

In many cases, we’re able to resolve the issue quickly and get your visa issued without significant delay. This is particularly true when the problem is one of missing or outdated documents, or when clarification can be provided with a legal explanation or supplemental materials.

But Sometimes, Administrative Processing Doesn’t End

Unfortunately, some cases remain stuck in administrative processing for months or even years, with little or no information provided by the consulate. Repeated follow-ups often yield the same answer: “Your case is still undergoing administrative review.”

In these cases, our firm may recommend taking further action—including litigation in federal court to compel the government to act on your case.

In Summary

A visa refusal under INA § 221(g) is a temporary and often solvable problem. As your attorneys, we will guide you through the administrative processing phase, help submit the necessary documents, and follow up with the consulate to keep your case moving.

In most cases, that’s all it takes to turn a 221(g) refusal into an approved visa.

But if your case remains stalled for an unreasonable period, we’re also prepared to discuss next steps—including the possibility of filing a federal lawsuit to force a decision. That option is rare, but when appropriate, it can be a powerful tool.

Stay tuned—our next article will explain how litigation can help break free from prolonged administrative processing.

If your marriage to a U.S. citizen ended in divorce before you could jointly file Form I-751, you may still qualify to remove conditions on your green card. With the right evidence, a good-faith I-751 waiver can help you move forward legally and confidently.

In this guide, we’ll explain what a good faith waiver is, how to prove your case, what to expect from USCIS, including potential Request for Evidence (RFE) notices, and how legal guidance can make a difference.

What Is a Good Faith I-751 Waiver?

A Good Faith I-751 Waiver is not a separate form—it is a type of request made within Form I-751, the petition used to remove the conditions on a 2-year marriage-based green card. Normally, this form is filed jointly by both spouses. However, if you’re divorced, you can file it alone by requesting a waiver of the joint filing requirement. You do this by checking the box on Form I-751 that states your marriage was entered into in good faith but ended in divorce or annulment.

This waiver tells USCIS that your marriage was real and not just for immigration purposes, even though it didn’t last. You must include strong evidence to support the authenticity of the relationship.

This waiver could be used for conditional permanent residents who:

• Received a 2-year conditional green card through marriage to a U.S. citizen, and
• Divorced during these 2 years.

Under 8 CFR § 1216.5(a)(1)(ii), USCIS allows individuals to file alone if:

“The marriage was entered into in good faith by the conditional resident alien, but the marriage was terminated…”

In short, your marriage must have been real, not for immigration purposes, even if it ended in divorce.

How to Prove Good Faith in an I-751 Waiver Petition

To avoid I-751 denial after divorce, USCIS needs convincing evidence that your relationship was legitimate. Strong applications include:

1. Proof of a Shared Life

Birth certificates of any children.

Joint bank accounts, insurance policies, or credit cards.

Shared leases or mortgages.

Utility bills and tax returns.

Travel records, photos, and correspondence.

Signed affidavits from friends, relatives, or coworkers familiar with your relationship.

2. Your Personal Affidavit

Your story is powerful. Describe how you met, the development of your relationship, major life events, your shared home, and why the marriage ended. USCIS pays close attention to this personal narrative, especially when other documentation is limited.

3. Explaining Missing Evidence

If your spouse was uncooperative or controlled access to records, include a detailed explanation. USCIS understands real-life complications, particularly in difficult or imbalanced relationships.

When Should You File Your I-751 Waiver?

Timing matters, but you may have more flexibility than you think.

For joint petitions, Form I-751 must be filed within the 90-day window before the second anniversary of receiving conditional permanent resident (CPR) status. This is when both spouses typically submit the petition together.

But if you’re applying for a good-faith waiver after divorce, the rules are different, and potentially in your favor.

You Can File a Waiver Anytime You’re Eligible

According to the USCIS Policy Manual, a conditional resident requesting a waiver does not need to wait for the 90-day period. You can file:

• Before the 90-day window.
• During the 90-day window.
• After the 90-day window.
• Even after your green card expires, as long as a final removal order hasn’t been issued against you.

If you are already in removal proceedings, you can still file the waiver, but only before the immigration judge issues a final order. This means once the immigration judge issues a final removal order, the opportunity to file the waiver ends, and alternative legal strategies must be considered. That’s why it’s so important to act fast and work with an experienced immigration attorney who can protect your status in time.

What Happens If You Receive a Request for Evidence (RFE)?

It’s common for applicants to receive an RFE, asking for more information. But it’s also a critical moment: one misstep could cost you your green card.

An RFE means USCIS needs additional proof before making a final decision. Typical reasons for an I-751 RFE include:

• Insufficient documentation
• Gaps in the timeline of your relationship
• Missing or unclear personal statements
• Conflicting details in affidavits or records

Responding promptly and thoroughly is crucial. A strong legal team can help you analyze the RFE, gather the right evidence, and prepare a detailed response that resolves USCIS concerns.

Does Filing a Waiver Extend Your Legal Status?

Yes. USCIS automatically extends your conditional green card for 48 months (4 years) when you properly file Form I-751. This means:

• You remain authorized to work.
• You can legally live in the U.S.
• You can continue your life without fear of falling out of status.

This extension applies while your petition is under review, even if your green card has technically expired. It gives you valuable peace of mind while your case is being processed.

Can You Travel Abroad While Your I-751 Waiver Is Pending?

Yes, but with caution. If you have properly filed Form I-751 and received your receipt notice (Form I-797) confirming the 48-month automatic extension of your conditional green card, you are generally allowed to travel internationally and re-enter the U.S.

However, travel is not recommended if:

• You’re in removal proceedings.
• Your conditional green card has already expired, and you don’t have your receipt notice or extension letter in hand.
• You have other unresolved immigration issues.

You must carry your expired green card and the I-751 receipt notice when traveling to prove your extended lawful status. But because travel during this process can be risky, especially if you’re awaiting a decision or in removal proceedings, it’s strongly advised to consult an immigration attorney before leaving the U.S.

Why Legal Support Is Key?

Filing a good-faith I-751 waiver is more than just paperwork—it’s telling your truth in a way that USCIS can understand and trust. Any mistake, inconsistency, or missed deadline can lead to denial or removal proceedings before an Immigration Judge.

At Immigration Law of Montana, P.C., we’ve helped countless clients navigate these high-stakes waivers with clarity, compassion, and precision.

Just because your marriage ended doesn’t mean your green card has to. If your relationship was sincere and your story is told clearly, you can still secure your future in the United States. Let our experienced legal team help you prepare your I-751 petition.

By Gabriela Veroes, Legal Assistant at Immigration Law of Montana, P.C.