If you are a citizen of the United States, nothing in the law stops you from marrying an undocumented immigrant. Whether your marriage will qualify your spouse for a green card, however, is a matter that you both may need to discuss with a Las Vegas immigration attorney.
Family reunification has historically been a priority of U.S. immigration policy, with a major emphasis on allowing immediate relatives – spouses, minor children, and the parents of U.S. citizens – to reside together in the United States.
Why Would the Spouse of a Citizen Not Qualify for a Green Card?
An immigrant usually qualifies for a green card when he or she becomes the spouse of a U.S. citizen, but if the immigrant has been in the United States without documentation, there will usually be some additional barriers to obtaining a green card.
The main concern for immigration authorities is the amount of time that a non-citizen spends in the U.S. without documentation, particularly if that person crossed the border without inspection.
If you were in the United States without inspection, and if you apply for a green card, you will probably have to go to a consulate outside of the U.S. for your green card interview.
What Can Happen if You Were Undocumented in the U.S.?
At that interview, if you spent 180 or more days in the United States without documentation, you could be penalized for your unlawful entry and time in the U.S.
The consequence of an unlawful stay from 180 to 365 days is having to spend three more years outside of the United States before you can return. If you were in the U.S. unlawfully for more than a year, you will have to spend ten years outside of the United States before you may return.
Can You Obtain a Waiver for an Unlawful Stay?
During your interview at the consulate, you may be allowed to obtain a waiver (that is, legal forgiveness) for any unlawful stay, but these are hard to obtain. Couples in this situation will need to do the following – with help from a Nevada immigration attorney – to obtain a waiver:
1. Submit Form I-130 (“Petition for Alien Relative”) to U.S. Citizenship and Immigration Services (USCIS). Make sure you indicate that your spouse will be requesting a green card from outside the United States.
2. If the I-130 petition is approved (this usually takes six to eight months), you will receive a notice from the National Visa Center asking you to submit the immigrant visa application and pay the immigrant visa fee.
3. You’ll need a receipt for your immigrant visa application in order to file the application for a waiver. If the waiver is approved (this usually takes about six months), your spouse’s visa interview at a U.S. consulate abroad will be scheduled.
When Can Someone be Barred for Life from the U.S.?
However, if your spouse has entered the U.S. without documentation more than once, has re-entered unlawfully after a deportation, or has re-entered unlawfully after having been in the U.S. without legal status for over a year, your spouse may be barred for life from entering the U.S.
Every case is different, and there are a number of reasons why waivers and exceptions may be granted. If your spouse has been in the U.S. without documentation at any time and for any reason, before you and your spouse seek a green card, consult with a good immigration attorney.
In most cases, if your spouse is an immigrant who entered the U.S. legally and with proper documentation, your spouse will not have to leave the United States or seek a waiver to obtain his or her green card.
What is Marriage Fraud?
However, if your spouse obtained a visa for one stated purpose – employment, for example – but then used the visa for another purpose such as marriage, your marriage may be deemed fraudulent, and your spouse’s request for a green card may be denied.
To obtain a green card based on a marriage to a U.S. citizen, your spouse also must satisfy the other eligibility criteria. The marriage must be a legally recognized and “bona fide” marriage, for example, and not merely an arrangement to help your spouse obtain a green card.
If a non-citizen marries a U.S. citizen only to obtain a green card, and the two have no intention of living as a married couple, getting married and applying for a green card constitute marriage fraud.
A federal marriage fraud conviction may be punished with a sentence of five years in prison and a $250,000 fine. But even if your marriage is fully bona fide, your spouse still has more to prove in order to be approved for a green card. A Las Vegas immigration lawyer can help.
What Else Will Your Spouse Need to Receive a Green Card?
For example, your spouse will also have to show immigration authorities that he or she has not committed certain crimes (or more than two crimes of any type), does not carry a communicable disease that would pose a danger in the United States, and will not require public assistance.
If you are a U.S. citizen and your spouse entered the U.S. “with inspection” – meaning that your spouse was inspected by a Customs and Border Protection (CBP) agent and had a valid visa or entered under the Visa Waiver Program – your spouse should be approved for a green card.
What If You’re Not Yet Married?
If you’re not yet married, provided that your future spouse meets all other immigration requirements, there are two basic ways to obtain a green card for your future spouse: obtaining a fiancé visa or marrying abroad and then obtaining an immigrant visa.
To obtain a fiancé visa, the U.S. citizen files a petition with USCIS sponsoring his or her fiancé. When the petition is granted, the fiancé is interviewed at a U.S. Consulate abroad.
Upon receiving the immigrant visa, the fiancé may then travel to the U.S., where the fiancé will have ninety days to marry the sponsoring U.S. citizen.
After the marriage ceremony, the noncitizen spouse may then file immediately for lawful permanent residence and may remain in the U.S. as the application is being processed.
If You Get Married in Another Country
If you are a United States citizen and you marry a non-citizen in another country, your spouse should submit an immigrant visa petition to USCIS.
When the immigrant visa petition is issued, your spouse will then be interviewed at a U.S. Consulate, and when your spouse enters the United States, lawful permanent residence has already been granted.
If your goal is permanent lawful residence or U.S. citizenship for yourself or a loved one, heeding the sound legal advice of a Las Vegas immigration attorney is the surest way to achieve that goal, and having that sound advice is your legal right.