If you are married to an undocumented immigrant, you are not alone. According to the Wall Street Journal, about 1.2 million undocumented immigrants are married to United States citizens. And that number doesn't even include undocumented immigrants married to U.S. permanent residents. Getting a marriage green card protects your spouse from deportation and, as immediate relatives, gives them a path to naturalization. But applying for a marriage green card can be a difficult process. And in most cases, it is even more challenging when your spouse is undocumented. This article will help you weigh the benefits and risks of applying for a marriage green card for your undocumented spouse.
Written by Jonathan Petts.
Written May 25, 2022
My Spouse Is an Undocumented Immigrant With an Expired Visa. Can I Sponsor Their Green Card?
Many undocumented immigrants came to the United States legally. For example, some undocumented immigrants arrive on a valid nonimmigrant visa like a tourist visa or other temporary valid visa and then fail to leave. In that case, your marriage green card application should be treated the same as if your spouse had legal status. There is little downside to applying for a green card.
But your undocumented spouse should be careful about leaving the U.S. before they receive their green card. If your spouse leaves the country before then, the U.S. government may ban them from reentering the U.S. for three to 10 years. The length of the bar depends on the amount of time they spent in the U.S without authorization.
My Spouse Is Undocumented and Entered the U.S. illegally. Can I Sponsor Their Green Card?
If your undocumented spouse entered the U.S. illegally, applying for a marriage green card is normally much harder under immigration law. If you are eligible, the application process involves numerous supporting documents. The application process also differs depending on whether you are a citizen of the United States or a permanent resident.
I'm a U.S. citizen
If your undocumented spouse entered the United States illegally, they must leave the country to get a green card. The process depends on how long they have been in the U.S. without legal status.
If they have been in the United States for less than 180 days without legal status, spouses of U.S. citizens can return to their home country and file a green card application with the U.S. consulate there. This process, called consular processing, is often used by foreign spouses.
But if your undocumented spouse has been living in the United States for more than 180 days without legal status, the process is significantly riskier. If your spouse leaves the country, they will ordinarily be barred from reentering the U.S. from anywhere between three to 10 years.
To avoid the bar, your spouse must apply for a provisional waiver under U.S. immigration law. Provisional waivers are extremely hard to prepare and usually cost between $5,000 and $11,000 in attorney fees. Your attorney will walk you through how to complete Form I-601: Application for Waiver of Grounds of Inadmissibility and prepare any relevant affidavits for the waiver application.
Finally, if your undocumented spouse has been living in the U.S. without legal immigration status for a year or more, has entered the U.S. illegally multiple times, or has been deported, your spouse may be permanently barred from re-entering the U.S if they leave.
I'm a U.S. Lawful Permanent Resident
If you are a U.S. permanent resident, applying for a marriage green card for your undocumented spouse works mostly the same as if you were a U.S citizen. But there are two important differences. First, the application process takes approximately 18 months longer because the undocumented spouse must wait for a visa to become available from the National Visa Center.
Second, until recently, a green card holder’s undocumented spouse could not apply for a provisional waiver. Thus, you should check the latest USCIS immigration law guidelines to ensure that your spouse is eligible to apply for a provisional waiver if they would otherwise be barred from reentry.
My Undocumented Spouse Is a DACA recipient. Can I Sponsor Their Green Card?
If your undocumented spouse is a DACA (Deferred Action for Childhood Arrivals) recipient, there are two other special rules.
First, “unlawful presence” does not begin until a person turns 18 years old. So if your spouse applied for DACA before turning 18 years old or applied within 180 days of turning 18 years old, they generally should not be barred from re-entering the U.S. if they apply from abroad.
Second, DACA recipients may apply for an Advance Parole travel document that permits travel outside of the United States. If your spouse used an Advance Parole document to reenter the U.S. after traveling abroad, they should be able to apply for a marriage green card inside the United States as an adjustment of status. The reason they can adjust their status is that their most recent entry to the U.S. was legal.
What Is the Green Card Application Process for My Undocumented Immigrant Spouse?
Unless your undocumented spouse arrived legally in the U.S., obtained Advance Parole, or accrued less than 180 days of unlawful presence, you generally must follow four steps to apply for a marriage green card under the U.S. immigration law:
You must submit Form I-130 to U.S. Citizenship and Immigration Services (USCIS) indicating that your spouse will be submitting their green card application through a U.S. Consulate. It usually takes 6-8 months for USCIS to approve Form I-130.
Once USCIS approves your Form I-30, you must submit an immigrant visa application and pay the government filing fee.
If you need to apply for a provisional waiver, you first must get a receipt from the National Visa Center showing that you submitted your immigrant visa application. Once you submit your waiver application, it may take up to six months to receive a decision on the waiver.
If your waiver application is approved, your spouse must attend an interview with the U.S. consulate in their home country. Your spouse would need to travel to that country to attend that interview.
ImmigrationHelp.org offers step-by-step guides for applying for a marriage green card and for collecting the necessary supporting documents. That said, it is critical to understand that your undocumented spouse may be barred from reentering the United States for 3-10 years if they have spent over 180 days here without a valid visa.
Also, your undocumented spouse could be permanently barred from reentering the United States if they did any of the following:
Entered the United States illegally more than once.
Entered the United States illegally and were subsequently deported.
Entered the United States illegally and lived here without legal status for more than one year.
Because the waiver application is risky, many couples choose not to apply. If you do choose to apply and your spouse is otherwise eligible, it is critical to get professional help from an immigration lawyer. You should seek out a local legal aid organization or an experienced immigration attorney to represent you and to prepare your waiver application.
There Are Some Risks Involved With Consular Processing for Undocumented Spouses
As part of consular processing, your undocumented spouse would interview with an immigration officer at a U.S. consulate or U.S. embassy in their home country. The immigration officer can penalize your spouse for illegally living in the United States. If your spouse has resided in the U.S. unlawfully for more than 180 days, the immigration officer could bar your spouse from re-entering the United States for three to ten years. To avoid this outcome, you must have an application for a provisional waiver approved.
What Does USCIS Consider Marriage Visa Fraud?
Whether you are a green card holder or a permanent resident, your spouse must be careful not to commit fraud when embarking on this process. A common form of visa fraud occurs when your spouse enters the U.S. on a tourist visa for marriage purposes. In this situation, your spouse may lose their eligibility to apply for permanent resident status, and other forms of U.S. visas in the future.