Can an Undocumented Immigrant Get a Green Card Through Marriage to a U.S. Citizen or Resident?

If you are one of the many binational couples in which a U.S. citizen or permanent resident has married an undocumented (or illegal) immigrant, then you might be hoping to get foreign national a green card and settle into married life. However, we have both good news and bad news. Although you (the immigrant) might meet the basic eligibility criteria for U.S. lawful permanent residence, you could run into several hurdles, in particular that:

• If you entered the U.S. illegally, you most likely won't be allowed to use the U.S.-based application procedure known as "adjustment of status," which is significant for the reasons described next.
• Even if you entered the U.S. with a visa, you can probably adjust status only if you married a U.S. citizen (not a permanent resident), besides which you might face the issue of proving that you didn't use the visa with the secret (fraudulent) intention of getting married and applying for a U.S. green card, and
• if you aren't allowed to adjust status, your only procedural option is "consular processing," in which you'd leave the U.S. to attend your final visa interview in your home country, but at that point the consular officer could penalize you for any stay in the U.S. over 180 days by barring your return for a period of three or ten years.

This makes applying for U.S. lawful permanent resident too risky for some couples. We'll discuss all those concerns in greater detail here, and mention waivers and other possibilities that might eventually lead to a successful application for permanent residence.

Eligibility for Green Card (Lawful Permanent Residence) Based on Marriage

Under U.S. immigration law, immigrants who marry U.S. citizens or permanent residents are among the categories of people allowed to apply for U.S. green cards.

If the marriage is to a U.S. citizen, then the immigrant is an "immediate relative," meaning that an unlimited number of immigrant visas (green cards) are available in that category every year and the immigrant can't possibly end up on a waiting list. It's also easier to adjust status, as described in the next section.

If the marriage is to a U.S. lawful permanent resident (green card holder), then the immigrant is in preference category 2A, meaning there are a limited number of visas every year, and the immigrant will be on a waiting list. But it's not as long a wait as in some other categories (typically from two to five years).

Complicating Factor: Not Everyone Eligible for a Marriage-Based Green Card Can Adjust Status and Receive One

Now for the bad news. Whether immigrants who are living in the U.S. can "adjust status" (apply for a green card without leaving the United States) depends on whether they fit into one of a few narrow exceptions. Immigrants can adjust status only if they either:

• legally entered the U.S., most likely with a visa or after inspection by an immigration officer (and weren't just using the visa with the intention of applying for a green card based on marriage, which happens to be visa fraud), and are either marrying a U.S. citizen or are still on a valid stay (most likely under the terms of that visa), or
• had a visa petition (Form I-130 or I-140) or labor certification filed for them several years ago when a law called "245(i)" was still in force.

Immigrants who entered the United States by unlawful means, however, such as having been stowaways or crossed the border through a fence, cannot use adjustment of status. It is simply not a procedural option for them.

Similarly, if the U.S. spouse is only a permanent resident, and the non-citizen's permitted stay has expired, the legal entry won't be a ticket to adjustment of status. But if the U.S. spouse eventually becomes a citizen, and the non-citizen manages to stay in the U.S. without getting arrested and deported, adjustment might be a possibility after all.

If adjustment is not an option, the only possibility is to apply for the green card through a different procedure, called "consular processing." The risks of this are discussed below.

Another Complicating Factor: Possibility of Visa Fraud Finding When Adjusting Status

As if U.S. immigration law weren't already complicated enough, immigrants who entered the U.S. legally and are hoping to adjust status based on marriage may be scrutinized by the immigration official deciding their case as to whether their entry was truly lawful; or whether the immigrant was misusing a visa by secretly planning to apply for a green card after entry.

For example, someone who comes to the United States as a student, meets and marries a U.S. citizen, and then applies to adjust status should have no problem getting a green card approved. That's true even if the immigrant turns in the adjustment of status application after a visa overstay, perhaps long after graduating. The key is that the person didn't even know the future spouse, and thus could not have been secretly planning the wedding and green card application when applying for the visa and entering the United States.

But someone who applies for any visa other than a K-1 fiancé visa to come to the U.S. having wedding plans already in mind, would not be eligible for a green card; at least, not without successfully applying for a waiver (legal forgiveness) of the apparent fraud.

For example, many people use B-2 tourist visas to come to the United States to meet their U.S. boyfriend or girlfriend. If they aren't sure about whether they want to get married, but end up marrying and applying for a green card, that's ordinarily okay.

But if they already planned to marry and were just using the tourist visa to make the process faster and easier, that's not okay. In fact, it's considered visa fraud, and can not only destroy the immigrant's eligibility for a green card, but for future visas to the United States. Again, the only hope would be to consult an attorney and apply for a waiver.

Risks of Consular Processing After Unlawful Stay in the U.S.: Time Bar Placed Upon Return

Consular processing is the alternative procedural path to adjustment of status. It involves the immigrant attending an interview at a U.S. embassy or consulate in the home country. An immigrant who has lived in the United States unlawfully, whether after an illegal entry or a visa overstay, and who then leaves the country for consular processing risks being penalized for the illegal stay.

The penalty is three years if the period of unlawful presence was 180 days or more, and ten years if the period of unlawful stay was one year or more. It might be possible to file for a waiver before leaving (using Form I-601A), which would allow a return with no time bar. However, this only works if you have no other grounds of inadmissibility affecting your case. If you do, you'd need to wait until you were overseas and had attended your consular interview to seek the waiver, and it obviously could be denied. Then you would have to wait years to return to the U.S. with any visa. Definitely seek legal advice before relying on this strategy.

Spouses of an illegal immigrant must show that they or their children will suffer hardship if the immigrant is refused reentry.

Talk to a Lawyer Before Submitting an Adjustment of Status Application Based on Marriage

The information contained above is only a brief outline of adjustment of status possibilities for an illegal immigrant. The law is complicated, and contains both pitfalls and useful exceptions. Please consult an immigrant lawyer about your specific circumstances.