You are a U.S. citizen or permanent resident who has fallen in love and gotten married. But there is a catch – your spouse is undocumented. A common misconception is that it is easy to fix your spouse’s status because you are a citizen or permanent resident.
Unfortunately, the process is not always simple, but the good news is that it is possible in many cases to sponsor an undocumented spouse for a Green card! You should be prepared for an often lengthy and complicated process. How your spouse entered the U.S., how long they have been undocumented, and whether you are a citizen or permanent resident are all factors that will affect how easy or difficult it will be to sponsor them for a Green Card.
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U.S. Citizen Sponsoring the Spouse
The path will be easier for your spouse if you are a U.S. citizen rather than a permanent resident. The government prioritizes U.S. citizens’ family members’ unification, which can make your spouse’s status somewhat easier to fix. However, it makes a difference whether your spouse entered the U.S. legally or illegally.
The Spouse Enters Legally
Your spouse would have an easier path if they entered the U.S. legally using a visa or with a visa waiver compared to those who didn’t enter legally. You can sponsor them using the same process that someone who had maintained legal status would use. This will allow them to adjust their status inside the U.S. instead of processing for their Green Card at a U.S. consulate overseas. However, they should be extremely cautious about leaving the U.S. before receiving their Green Card because they might not be able to reenter while their case is pending. In such a situation, they can still receive a Green Card through consular processing, but you may face a long separation while the case is pending.
The Spouse Enters Illegally
Your spouse’s situation becomes more difficult if they entered the U.S. without a visa or visa waiver. They will have to leave the U.S. and receive their Green Card through a U.S. consulate in their home country. Their situation can become even more complicated depending on how long they have been in the U.S. without documented status. If they have been illegally present for more than 180 days, they will be subject to a three-year bar on entry to the U.S. If they have been unlawfully present for more than a year, they are subject to a ten-year bar. It is possible to apply for a waiver, but such waivers also require them to prove that having to leave the U.S. would cause serious hardship for you, their U.S. citizen spouse, or their U.S citizen parents. An example of this would be the primary caregiver for a child with a severe medical condition.
Green Card Holder Sponsoring an Undocumented Spouse
You can sponsor your undocumented spouse for a Green Card if you have permanent residency, but the conditions are not as advantageous as they would be if you were a U.S. citizen. Your spouse will have to process for their Green Card at a U.S. consulate no matter how they entered the U.S. Their process will be very similar to that of spouses who entered illegally and are married to U.S. citizens, with a couple of key differences: 1)
Since there is a cap on the number of visas issued per year for spouses of permanent residents, there is frequently a backlog, resulting in wait times; and 2). It is much more challenging to obtain a waiver for spouses of permanent residents compared to spouses of U.S. citizens. The process will also take longer because they cannot apply for a waiver until a visa is available.
Can DACA Affect My Spouse If They Want to Get a Marriage-based Green Card?
In many situations, having DACA status will not affect your spouse’s Green Card process, so they will follow the same path as any other person in the same situation, such as whether they entered the U.S. with or without a visa.
However, your spouse cannot be considered unlawfully present until they turn 18 years old. Since penalties for unlawful presence do not kick in until after 180 days, they will not be subject to penalties if they received DACA status within 180 days of turning 18. Some DACA recipients also have an Advance Parole document that allows them to travel outside the U.S. Your spouse should be able to adjust their status if they last entered the U.S. using Advance Parole.
What are the Requirements for a Marriage-Based Green Card?
All applicants for marriage-based Green Cards must meet certain requirements regardless of their immigration status or whether the sponsor is a U.S. citizen or permanent resident. They will need to prove that you are legally married in a bona-fide (legitimate) marriage and that you did not marry only for immigration purposes. You will have to promise to support your spouse financially and that you have the means to do so. You must also be domiciled in the U.S.
There are certain situations where you might be disqualified from sponsoring your spouse, including having recently remarried under certain circumstances. Being convicted for certain offenses against minors such as kidnapping or sex crimes or USCIS believes that you present a risk to your spouse.
Your spouse can also be disqualified for reasons such as having certain health conditions, criminal history, immigration violations, or if they believe that your spouse is unlikely to support themselves and/or require public assistance.
How Can Brudner Law Help You?
It’s always recommended that you consult an immigration attorney before filing for any immigration benefit. This becomes especially important if your spouse is undocumented and even more so if you or your spouse have any complicating factors such as having a criminal record or an illegal entry. Brudner Law is experienced in assisting people like you and your spouse. We can help you both determine the best path forward, let you know what to expect, answer your questions, and help you with every step along the way.
If you need any help navigate this complicated process please Contact Brudner Law today and see how we can help.
Give Us A Call!
While the path to a Green card for your undocumented spouse might not be fast or easy, it is often doable. A Green Card for your spouse can give you both peace of mind. Call Brudner Law today and find out what we can do for you!