Can you marry an illegal immigrant in the US? Find answers and guidance in this blog post.
In the United States, marrying an undocumented immigrant is allowed, and there is no legal restriction preventing such unions. However, it doesn’t automatically grant legal status to the undocumented spouse. The process involves navigating complex immigration laws and may require additional steps, such as applying for a marriage-based green card.
Couples in this situation often face challenges related to the undocumented partner’s immigration status. It’s crucial to consult with an immigration attorney to understand the requirements, potential risks, and available pathways to legalize the immigrant spouse’s status.
Various factors, such as the manner of entry into the country and any previous immigration violations, can impact the process. Seeking professional advice is essential to ensure compliance with immigration laws and to increase the chances of a successful outcome.
Remember, while marrying an undocumented immigrant is permissible, the legal journey ahead can be intricate. Seeking guidance from legal experts is key to navigating the complexities and making informed decisions about the path to lawful residency for both partners.
Understanding an individual’s undocumented status involves assessing their entry into the United States. To be eligible for a green card application within the U.S., the foreign national must have entered lawfully, meaning they were admitted or paroled into the country. This typically occurs through valid documentation, where the individual interacts with a U.S. immigration officer at a designated port of entry.
A lawful entry involves face-to-face contact with an immigration officer who acknowledges the individual’s arrival. This recognition is crucial for the green card application process. On the contrary, an unlawful entry occurs when individuals, even if brought in as minor children with their parents, enter the U.S. without proper documentation. Recognizing the entry status is fundamental in determining the available pathways for addressing immigration challenges.
“Undocumented” and “unlawfully present” are often synonymous terms. Individuals who enter the United States without proper documentation and lack an immigration status fall into the category of being unlawfully present. This includes those who entered with a valid visa but overstayed despite having initially entered lawfully.
It’s important to note that while overstaying a visa results in unlawful presence, U.S. immigration law provides some flexibility. Certain foreign nationals physically present in the United States may still be eligible to adjust their status to permanent resident, even after a visa overstay. Understanding these distinctions is crucial for navigating the complexities of immigration law and exploring potential avenues for individuals facing unlawful presence.
Leaving the United States after certain periods of unlawful presence can result in reentry bars:
– A 3-year bar applies if the foreign national departs after accruing over 180 days but less than 1 year of unlawful presence during a single stay.
– A 10-year bar is triggered if the foreign national departs after accruing one year or more of unlawful presence during a single stay (INA section 212(a)(9)(B)(i)(I)(II)).
– Permanent bar if the foreign national reenters or attempts reentry without admission or parole after accumulating more than one year of unlawful presence in the aggregate during one or more stays in the United States.
This is why marriage to an undocumented immigrant who has departed the United States can make things more difficult, given these reentry bar implications.
For an undocumented individual, the most direct route to legal status often involves marriage to a U.S. citizen after a lawful entry. Spouses of U.S. citizens fall under the immediate relatives category in immigration law, exempting them from certain rules that might hinder others in obtaining permanent resident status (green card). This means that an undocumented spouse of a U.S. citizen can adjust their status even after overstaying a visa.
Crucially, no special waivers are typically required for the overstay as long as the green card applicant can provide evidence of their lawful entry. This pathway provides an opportunity for undocumented spouses to establish legal status without the need for additional waivers, making the process more straightforward in certain cases.
Applying for a green card as the spouse of a U.S. citizen with a visa overstay follows a process similar to any other spouse-based adjustment of status. The standard adjustment of the status package typically includes the following forms:
– I-485, Application to Register Permanent Residence or Adjust Status
– I-130, Petition for Alien Relative
– I-130A, Biographic Information (if the relative is a spouse)
– I-864, Affidavit of Support
– I-765, Application for Employment Authorization (optional)
– I-131, Application for Travel Document (optional)
– I-693, Report of Medical Examination and Vaccination Record
Completing these forms accurately and providing all required documentation is essential for a smooth green card application process for spouses of U.S. citizens with a visa overstay.
Before receiving a green card, your spouse can secure employment authorization through a work permit. As an adjustment of status applicant, they are eligible to seek work authorization and, upon approval, will be issued an Employment Authorization Document (EAD). This document serves as a government-issued photo ID for employment purposes. To request the EAD, applicants can submit Form I-765, Application for Employment Authorization, without an additional USCIS filing fee when included in the adjustment of status package.
In general, adjustment of status applicants can travel abroad if they secure advance parole travel documentation before their departure. However, those with accrued unlawful presence in the U.S. should exercise additional caution before traveling internationally. It is advisable to consult with an immigration attorney to address the applicant’s circumstances. Applicants can submit Form I-131, Application for Travel Document to request advance parole.
If your foreign national spouse has stayed in the U.S. for more than six months after an unlawful entry, they will likely need to undergo a green card interview at a U.S. embassy or consulate abroad. As mentioned earlier, the 3- or 10-year bar could pose a legal challenge in this process. When marrying an undocumented immigrant who entered without inspection, an option may be seeking an unlawful presence waiver.
Similarly, spouses of permanent residents with accrued unlawful presence may encounter difficulties adjusting status and might opt for consular processing, risking triggering a bar. Again, an unlawful presence waiver could offer a solution.
Certain immigrant visa applicants, relatives of U.S. citizens or permanent residents, can use Form I-601A to request a provisional unlawful presence waiver under the Immigration and Nationality Act section 212(a)(9)(B). This request is filed and decided before departing the U.S. for a U.S. embassy or consulate interview. The approved I-601A assures reentry bars.
Note that the provisional unlawful presence waiver specifically addresses the unlawful presence ground of inadmissibility. Individuals with multiple inadmissibility grounds may require a broader I-601 waiver, and seeking guidance from an immigration lawyer for any waiver requests is highly recommended.
Similar rules apply to immigrants granted Deferred Action for Childhood Arrivals (DACA). If the DACA recipient’s latest entry was lawful, often through a valid visa or reentry with advance parole, they can likely pursue a green card after marrying a U.S. citizen. For DACA recipients who initially entered unlawfully, the most recent entry with advance parole is a lawful entry for adjusting status.
However, if a DACA recipient’s most recent entry was without inspection, they face challenges similar to others seeking to adjust status. In this case, securing a lawful entry becomes crucial, and they may be eligible for an unlawful presence waiver.
The process becomes more complex when marrying an undocumented immigrant with a felony or other criminal offenses. Various criminal acts can lead to inadmissibility, and individuals with a history of arrests or immigration violations should consult with an immigration attorney before submitting any USCIS forms.
Marrying an undocumented immigrant in the U.S. is possible, but it involves navigating a complex legal landscape. The ability to adjust status or pursue a green card depends on factors such as the immigrant spouse’s entry history, DACA status, and any potential criminal record. Seeking professional guidance from an immigration attorney is crucial to understanding the specific challenges and exploring available options within the legal framework. It is essential to approach the process with careful consideration and compliance with immigration regulations to ensure a smoother and more successful journey through this intricate process.