Marrying an undocumented or overstayed immigrant who came on a tourist visa by a U.S. citizen or a permanent resident is very often in the United States in the past years. If you are a U.S. citizen or you hold a permanent residence status, and you have an undocumented spouse, you might wonder how to help them get a green card.
There might be some complicating factors in your way, but you can easily overcome them if you have the right information.
The good news is that it is possible to apply for a marriage green card for a foreign spouse in many cases. But, be aware that the risks, expenses, and timelines will depend on whether the sponsoring spouse is a U.S. citizen and how the undocumented immigrants entered the United States- legally or illegally.
In the United States, there is an increase in immigration enforcement, including against people who have no criminal records. Therefore, many families decide that it is better to obtain adjust status and get a green card than to risk and spend much more on the application process.
We have gathered information that you need in one place if you want to sponsor an undocumented spouse, so keep reading and let us know if you have any questions. Herman Legal Group has lawyers experienced and specialized in immigration matters. If you need legal help, you can request a consultation with one of the immigration attorneys in our law firm using the online form, or you can call us at +1-800-808-4013.
Green Card Eligibility for U.S. Citizen’s Spouse
If your marriage to a U.S. citizen is legally valid in the place where it happened, you, as a spouse to a U.S. citizen, are called an “immediate relative.”
To obtain a green card through marriage and become a permanent resident, you will have to:
- Submit Form I-130 (Petition for Alien Relative);
- Complete Form I-485 or Form DS-260 and gather supporting documents
- Attend the interview and await approval
A green card is available as soon as you can get through the application procedures.
To learn about the whole marriage green card process, read our Marriage-Based Green Card Guide.
How to sponsor an Undocumented Spouse and get legal status?
Now, let’s look at different scenarios that may occur for U.S. citizens or permanent residents who are wondering how to marry an undocumented immigrant and find a pathway to adjustment of status and green card based on marriage for their spouses.
There are three possible scenarios:
- A U.S. citizen’s spouse entered legally but overstayed
- A U.S citizen’s spouse entered illegally
- A green-card holder’s spouse is undocumented
U.S. citizen’s spouse entered legally but overstayed
By “entered legally,” we mean that your spouse passed the inspection by a Customs and Border Protection (CBP) agent when entered the United States. During this inspection, the agent assessed that your spouse had a valid visa or entered under the Visa Waiver Program, and this is the good news.
However, there can be a slight downside to applying for a marriage-based green card. The foreign national should be extremely cautious about leaving the United States until receiving the U.S. green card. If an undocumented immigrant leaves the United States, there is a chance that he or she won’t be able to return for three or ten years, depending on how long your spouse was in the U.S. without legal immigration status.
Spouse of the U.S. Citizen Entered illegally
Your spouse may be able to apply for a green card—but only after he or she leaves the United States.
When an immigrant spouse entered the United States illegally but has spent less than 180 days, he or she has to return home and apply for a green card through the U.S. consulate. This is similar to when immigrants live abroad and want to apply for a marriage-based green card.
If an immigrant spouse has been in the United States for more than 180 days without legal status, he or she is subject to a ban from entering the United States. This prohibition may take from three to ten years. To avoid this and return to the United States sooner, your spouse needs to apply for a provisional waiver.
There are three steps to take in this situation:
Submit Form I-130
This form needs to be submitted to U.S. Citizenship and Immigration Services (USCIS). In this form, you should make sure to indicate that your spouse will be applying for a green card from outside the U.S.
Submit the visa application and pay the fee
When your I-130 is approved, which usually takes between six to eight months, you will receive a notification from the National Visa Center (NVC). NVC will usually ask you to submit your immigrant visa application and pay the required fee. After paying the immigration visa fee, you’ll get a receipt showing that you submitted this immigrant visa application. Keep this receipt since you will need it to file your provisional waiver application.
Attend the interview
Usually, after about six months, you will get a notification if your provisional waiver is approved. If so, your spouse will need to attend the visa interview at the U.S. consulate. This means that your spouse will need to be back in the home country on a scheduled date to attend the interview.
You’d also have to overcome any other possible grounds of inadmissibility. For example, you have to show that you haven’t committed certain types of crimes or two crimes of any type.
A lifetime Bar from Entering the United States
A lawful entry is a requirement for all immigrants which means they must have been admitted or paroled into the United States. To enter the U.S., a foreign national needs to have valid documentation, make face-to-face contact with a U.S. immigration officer, and get the acknowledgment to enter the United States at a port of entry.
If the foreign nationals overstay a visa, they become unlawfully present. But, if they have a lawful entry., U.S. immigration law allows those physically present in the United States to adjust status to permanent resident even after a visa overstay.
But, departing the United States after specific periods of unlawful presence may trigger bars to reentry. As USCIS stated here, the bar may last for:
- Three years– if the immigrant departs the U.S. after having accrued more than six months (180 days), but less than one year of unlawful presence during a single stay;
- Ten years– if the immigrant departs the U.S. after having accrued one year or more of unlawful presence during a single stay; or
- Permanently, if the immigrant reenters or tries to reenter the U.S. without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.
An undocumented spouse can get a permanent lifetime bar to entering the United States:
- if he or she entered the U.S. illegally more than once
- after having been deported
- after having been in the U.S. without legal status for a certain period of time- more than a year.
So, if you have entered the U.S. without inspection two times or more, and the total amount of unlawful time in the U.S. is one year or more, or if you were removed (deported) from the U.S. and came back illegally after it, you should consider speaking with a lawyer.
A spouse of a Green Card holder is an Undocumented Immigrant
To apply for a green card from inside the United States, foreign spouses of lawful permanent residents (green card holders) must have current legal immigration status.
It doesn’t matter if a spouse entered the country legally; the marriage-based green card application process is similar to the process for spouses of U.S. citizens, as immediate relatives, who entered the United States illegally. Still, there are two key differences that we can talk about:
The process takes longer
The process for spouses of permanent residents takes longer because they have to wait for a visa to become available. This waiting period can take about 18 months. When the visa becomes available, an undocumented spouse of a U.S. green card holder can apply for an immigrant visa with the NVC. This must be done before applying for a waiver.
Reasons to qualify for a waiver
Until recently, spouses of lawful permanent residents could not get waivers if they were subject to the three or ten-year bars from reentering the United States due to unlawful presence. It’s essential to get accurate, up-to-date information about whether or not your foreign spouse would qualify for a waiver in this situation.
How does DACA affect eligibility for a marriage-based green card?
Deferred Action for Childhood Arrivals may affect eligibility for a marriage green card spouse in different ways. This will be the case, especially if the DACA recipient entered the U.S. illegally and/or the sponsoring spouse is a U.S. lawful permanent resident.
First, we need to stress that “unlawful presence” accrues only after a person turns 18. If immigrant spouses applied for DACA before turning 18 or within 180 days of turning 18, they will generally not be subject to reentry bar (and therefore will not need a waiver) if they have to apply for a green card outside the United States.
Many DACA recipients can travel outside of the United States and return legally. This can be done with a travel document, also called “Advance Parole.” If DACA recipients entered the United States with their travel documents, they could apply for a marriage-based green card from inside the U.S.
Otherwise, DACA should have no particular effect on whether or not your undocumented spouse qualifies for a marriage-based green card.
Do I need a Lawyer?
Richard Herman is an immigration lawyer leading the law firm Herman Legal Group. Our attorneys have extensive experience in helping families reunite and live in the United States. We understand how important it is for you and that each case is different, so your immigration attorney will have an individual approach to your case, Legal fees may increase your expenses in the process, but making wrong steps can cost you a chance to
Information related to immigration processes on our site is not legal advice, so please contact us for any questions.