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
A 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.