People who live in the United States without valid immigration status, either because they crossed the U.S. border without permission or because they stayed beyond the time permitted on their visa or other status, are commonly called “undocumented immigrants.” (You might have also heard them called “illegal alien.”) As much as many undocumented immigrants might like to regularize their status, few ways exist to do so. Even the possibility of marrying a U.S. citizen, which under normal circumstances qualifies someone for a green card (lawful permanent residence), might not successfully lead to a green card for a person in unlawful status.
This article will explore:
- basic eligibility for a marriage-based green card
- normal application procedure for a marriage-based green card
- the sole application procedure likely to help an undocumented immigrant who overstayed a visa, and
- the sole application procedure that might work for an undocumented immigrant who entered the United States unlawfully (most likely in an illegal border crossing).
Basic Eligibility for a Marriage-Based Green Card
To meet the basic green-card criteria, the spouse of a U.S. citizen needs to show that the marriage is valid according to the laws of where they were wed, that the marriage is bona fide (not a fraud or sham to get a green card), and that neither person is married to anyone else. Applicants will be asked to prove all these things to the U.S. government.
An additional requirement for all would-be green card holders is that the foreign-born person is not “inadmissible,” meaning ineligible to enter the United States owing to a criminal history, having any of a list of communicable diseases, being likely to rely on government assistance (become a “public charge”), and so on.
One of the most problematic grounds of inadmissibility is “unlawful presence.” Specifically, a non-citizen who stays in the United States without permission for 180 days or more and then leaves is not allowed to return for a full 3 years. Someone who stays in the United States without permission for 365 days or more and then leaves is not allowed to return for 10 years. This has a huge impact on whether an undocumented person can get a green card based on marriage to a U.S. citizen, for both legal and procedural reasons, as described below.
Normal Application Procedure for a U.S. Green Card
The exact procedural steps to apply for U.S. lawful permanent residence are not the same for everyone. They depend on where applicants live and, if they live in the United States, whether it is with valid legal status.
In the standard case where the immigrant lives overseas, the basic procedure is that the U.S. citizen spouse files a visa petition (Form I-130) with U.S. Citizenship and Immigration Services (USCIS) and pays a fee, then the immigrant files more forms and paperwork with and pays more fees to a U.S. consulate in the country where they live, and later the immigrant has a medical exam done and attends a consular interview there. At the interview, the immigrant will hopefully be granted an immigrant visa with which to enter the United States and claim permanent residence.
The slightly less typical case is where the foreign-born person lives in the United States in valid legal status (not illegally). In that case, the U.S. citizen and immigrant can file both the I-130 petition and remaining "adjustment of status” paperwork directly and simultaneously with USCIS and pay fees to that agency. Both spouses will eventually attend an interview at a USCIS office, at which permanent residence will hopefully be approved.
The Only Application Procedure Likely to Work for Undocumented Immigrants Who Overstay a Visa
Someone who entered the United States with a visa and overstayed should absolutely not choose consular processing, as it could lead to a bar on return based on their unlawful presence. The important thing to realize about that bar is that it affects only people who have departed the United States. That includes a departure for a consular interview.
The good news is that the combination of being an immediate relative of a U.S. citizen and having entered the United States legally means the person is normally allowed by USCIS to use the adjustment of status procedure. There should be no need to leave the United States. Of course, there’s a risk of the person getting caught while in unlawful status, but as soon as the adjustment of status application is turned in, that person is legally allowed to remain.
The Only Application Procedure That Might Work for Undocumented Immigrant Who Entered the U.S. Illegally
Someone who entered the U.S. without permission is not normally allowed to use the adjustment of status procedure at all. Consular processing is their only realistic choice. But consular processing is problematic in that, having left the United States, they will be subject to the potential 3- or 10-year bar on reentry based on their unlawful presence. They could literally be stuck outside the United States for years following their consular interview.
One possible solution is to apply for a waiver (legal forgiveness) of unlawful presence. If unlawful presence is the only grounds upon which the person is inadmissible, it can be applied for before departure, on Form I-601A (the “provisional waiver”). (Also see What Happens If Your I-601A Provisional Waiver Is Denied?.) That offers the advantage that you will know USCIS's answer before risking at trip outside the United States for your consular interview.
If the foreign national has other grounds of inadmissibility (such as a crime or security issue), however, waivers must be applied for only after departing the United States, and the request must be made through the U.S. consulate handling the case. This is typically done using USCIS Form I-601. Any waiver is difficult to obtain, however, because it usually depends on having U.S. relatives who would suffer extreme hardship if it were denied.
The Benefits of Hiring an Immigration Attorney
You could greatly improve your chances of success by consulting with an immigration attorney. They attorney can help with analyzing the procedural requirements in your case and proving both the bona fides of the marriage and, if a waiver is required, any extreme hardship, to the satisfaction of USCIS and the U.S. consulate.