Is a pardon necessary for living in the U.S. illegally?

In this week's Consulta Migratoria® column I answer a reader's question.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

This is the column:

I am an Argentinean married to an Argentinean with two American children. In 2000, my husband and I came to the United States for the first time with a tourist visa and stayed living illegally for 7 years. Unable to fix our situation, we returned to Argentina on our own in 2007 and have never returned to the United States. My brother-in-law is a US citizen and a few months ago he petitioned for my husband and included me in the application. Will we need a pardon for having lived illegally in the US? - Sabrina S.

Sabrina, it is possible that you and your husband can obtain permanent residency in the United States through your brother-in-law without applying for a waiver for having lived in the country undocumented.

Under current law, a U.S. citizen may file a family-based petition on behalf of an unmarried, married, divorced or widowed sibling. If the citizen's sibling is married, it is possible for his or her spouse and unmarried children under the age of 21 to also obtain permanent residency on a derivative basis.

The family petition is filed with the U.S. Citizenship and Immigration Services (USCIS). Certain supporting evidence must be included with the family petition, including documentation showing the citizen's U.S. citizenship.

If USCIS approves your brother-in-law's family petition, the case will be assigned family category number 4 (F4) and sent to the National Visa Center for further processing. Eventually, the case will be sent to the U.S. Embassy in Argentina for your consular interview.

According to the October 2014 Visa BulletinThe U.S. Department of State is processing cases of Argentines in the F4 category with a priority date before January 22, 2002. In other words, there is a wait of approximately 12 years for an immigrant visa to become available to you.

You and your husband will not be able to apply for permanent residency until a visa is available in your husband's case. Processing times for immigrant visas change monthly. You should monitor the Visa Bulletin by going to to see how your case is going.

When applying for permanent residence, each of you will have to prove that you are admissible to the country. For example, you cannot have violated certain immigration laws, including having lived in the U.S. undocumented.

You and your husband lived undocumented in the U.S. for seven years after April 1, 1997 and then returned to Argentina. This subjects you to the 3 and 10 year unlawful presence bar, which does not allow you to return to the U.S. for a period of 10 years, unless you are granted a waiver.

They will not have to apply for a waiver if they have already lived outside the U.S. for more than 10 years when they apply for permanent residence. This will probably happen in your case because of the delay in obtaining an immigrant visa through a U.S. citizen sibling.

While waiting for an immigrant visa, do not go back to the U.S. illegally because your case will be greatly complicated.

Please consult with an immigration attorney to evaluate the documents your brother-in-law has filed with the USCIS to determine if they meet all the requirements to immigrate to the U.S. in the future.

For more information and immigration tips, read my blog

Send your questions to Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past president of the Hispanic National Bar Association and current president of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.