Immigration Through Marriage to a U.S. Citizen or Resident

If you are one of the thousands of American citizens and permanent residents who marry an undocumented person, you might want to help him get a green card to settle in the United States together. We have great news for you, as well as bad news.

The good news is that, under the U.S. immigration laws, immigrants who marry U.S. residents or permanent citizens are one of the categories of people allowed to apply for green cards.

If a marriage is to a U.S. citizen, then the immigrant is an "immediate relative," meaning that each year there is an infinite number of immigrant visas available in that category, so the immigrant will not wind up on a waitlist.

If the marriage is for a U.S. legal permanent resident, then the immigrant is in category 2A preference, indicating that there will be a limited number of visas each year, and the immigrant will be on the waiting list. But it's not a wait as long as in most other classifications (typically between two and five years).

Now, the bad news is whether a US-based immigrant can "adjust the status" it still depends on if he or she matches into one of a several narrow exemptions.

The immigrant could only tweak status if he or she reached the U.S. lawfully, most certainly with a visa or after an immigration officer's evaluation, and either marries a U.S. citizen or is still on a valid visa, or if a visa or labor certification petition was filed for him or her several years ago when a law called "245" was still in effect. Furthermore, if the immigrant entered the United States by illegal means, such as being a stowaway or traversing through a wall over the border, status adjustment is not really a legislative option. In such a case, the first and only option would be to apply for the green card through a different procedure, called "consular processing".

As if the law wasn't already complex enough, immigrants who reached the U.S. lawfully and who are hoping to change marriage-based status could be investigated by the immigration official determining their case as to whether their admission was actually lawful; or whether the immigrant misused a visa by secretly planning to apply for a green card after entering.

However, someone who is applying for any visa other than a fiancé visa to come to the U.S. with wedding plans already in mind would not be eligible for a green card; or at least, not without successfully applying for a waiver (legal pardon).

Consular processing includes the applicant receiving a US embassy or consulate interview in his or her home country. An immigrant who has lived illegally in the United States and then leaves the country for consular processing avoids being disciplined for the illegal residency.

The punishment is three years imprisonment if the period of illegal residence is 180 days or more, and ten years imprisonment if the period of illegal residence is one or more years. A court order can be filed (on FormI-601) enabling an earlier transfer, but certainly seek professional advice before depending on that strategy. The illegal immigrant's spouse must prove that if the immigrant is denied re-entry he, she, or their children will suffer deprivation.

The above information is merely a brief summary of the adjustment of an illegal immigrant's status rights. The law is complicated, and includes pitfalls as well as useful exceptions. Please consult your specific circumstances with an Immigrant lawyer.