When a U.S. citizen decides to marry a foreign born spouse, the start of this new life together usually begins with the question: How do I get my spouse papers? Or stated a little more sophisticated, how does my spouse become legal in the United States? Does he or she automatically become a U.S. Citizen? Is it automatically guaranteed that he or she can get papers just by marrying a U.S. Citizen? Many of my clients and friends alike are shocked when they discover that these questions seldom are easily answered and there are many potential delays, disqualifiers and flat out bars/barriers that can leave newly-weds left without easy options.
What seems like what should be a speedy and simple process, and also one that many assume is a fundamental right (the right to have their spouse with them here in the U.S.) can very quickly become a quagmire of problems, and potentially one can find themselves in a situation where there is no way to quickly and easily immigrate their spouse. I should know, my wife is from Mexico, and we almost ended up having to postpone our wedding due to U.S. immigration law and procedures.
Below are the basics of marrying and immigrating for foreign born spouses.
We start with the general rule in U.S. immigration law: If you entered the country illegally, you don’t “get papers” (legally referred to as Adjusting your Status) here in the United States. This means that for many people who entered illegally, they will be forced to leave the U.S. and go back to their home country in order to get their “greencard” (aka Legal Permanent Residence). Now there are a couple of exceptions to this general rule: the 245(i) exception, the VAWA exception, the U Visa exception, and I will briefly address them later. (One can also possibly win his or her residency in removal proceedings, but I will not cover those options here).
Option 1: The legal entry spouse who can Adjust Status
If you are a U.S. citizen fortunate enough to have a spouse/fiancé who entered the U.S. legally (having been inspected by a customs official on a valid passport not obtained through fraud) then you have hit the jackpot immigration-wise. You are then eligible for the easiest and quickest path to a greencard – Adjustment of Status. Right now this process takes about 6 months from filing to the interview, and your spouse can have their green card in hand in 6-7 months. In immigration time, this is the equivalent of the 40 yard dash and is the absolute fastest way to become a Lawful Permanent Resident, and 2nd place isn’t even close. By having entered legally this option is available as long as you have stayed in the U.S. the entire time since your last lawful entry, have not been removed from the country, nor have left the country on your own, and of course are not disqualified by a criminal conviction that makes you deportable.
You do have to be careful about the question of “immigrant intent”, which could cause you to be denied at your interview if the reviewing officer believes that your immigrant spouse’s intent from the moment they entered on their non-immigrant visa was to actually immigrate. I have seen immigrants who were denied at their interview because they admitted that they knew when they came into the U.S. on their non-immigrant visa that they were going to file for residency through their spouse. Immigration officials take very seriously the honest intent of the immigrant when they apply for admission. The most common example is an immigrant entering the U.S. on a tourist visa with their U.S. fiancé, who has the intent of marrying once inside the U.S. and applying for papers. Immigration will tell you that this is not allowed. However, there is a bit of semantics to their argument, because the exact same couple who came in on a tourist visa, who did have the intent of returning back to their home country, but then changed their mind once inside the U.S., would be allowed to stay and adjust their status. A small but important detail which can be the difference between an approval or a denial.
It’s also important to note that this process of adjusting to status is even eligible to someone who has overstayed their visa for any amount of time (as long as they never left the U.S. after entering legally). So, for example, an immigrant who enters legally on a tourist visa, overstays her permitted time by 15 years, but never leaves the U.S. and 15 years later marries a U.S. Citizen, is still eligible to Adjust Status, despite having accumulated 15 years of unlawful presence.
However, it is equally important to note that this privilege is only extended to the spouses of U.S. Citizens. A spouse of a Permanent Resident does not have the luxury to enter legally, overstay and adjust his or her status. But, if the Legal Permanent Resident spouse can ever naturalize, then they too would be eligible under this provision.
Option 2: The illegal entry spouse who is eligible to Adjust Status under I.N.A. § 245(i)
The most famous and most commonly used exception to the rule (that one who enters illegally cannot Adjust Status and get papers inside the U.S.), is the process commonly referred to in Immigration legal circles as 245(i). To be eligible under INA Section 245(i), the alien must have previously been the beneficiary (or derivative beneficiary) of either a labor certification under INA Section 212(a)(5)(A) or a family based petition under INA Section 204 (including I-140, I-130, I-360, I-526) that was filed on or before April 30, 2001. A beneficiary can adjust status based on an immigrant visa petition or labor certification that was approved after April 30, 2001, so long as his petition or application for certification was “properly filed” (postmarked or received by the Department) on or before April 30, 2001, and “approvable when filed”. The immigrant also must have been physically inside the U.S. before December 21, 2000. 8 C.F.R. Section 1245.10(a)(2). “Approvable when filed” means the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being “patently without substance”). 8 C.F.R. Section 1245.10(a)(3).
What does all that mean? Essentially, as long as your intending spouse was physically present in the U.S. before December 21, 2000, and somebody filed a petition for them on or before April 30, 2001, then they can pay a $1,000 fine and adjust status and get their greencard here in the U.S. without having to leave the country. And this can be done with the previously filed petition on its own (assuming the petition is now current) or it can be done by combining the previously filed petition with a new spousal petition. For example, if a young woman illegally entered the U.S. when she was 10 years old in January 2000, and her father was Permanent Resident and filed a family petition for her in April 20, 2001, but she never adjusted status under that original petition (for whatever reason, lack of money, laziness, lost contact with her dad, etc), but then later she marries a U.S. Citizen, that U.S. Citizen can file a new petition for her along with an Adjustment of Stats and she can combine the prior petition from her father to qualify for 245(i) and be able to pay the $1,000 fine to stay here in the U.S., and combine it with the new petition from her new U.S. Citizen boyfriend, and in 6 months or so should be able to adjust status to a Permanent Resident (again, assuming she stayed here the whole time and had no criminal disqualifiers).
Option 3: The Consular Process spouse or the Fiancé Visa
Option 3 is the least desirable of the options presented here, because of the requirement to leave the United States (assuming the person was already in the U.S. illegally and doesn’t qualify for one of the exceptions) or in cases where there immigrant spouse is already outside the U.S., to have to wait outside the U.S. for almost a year until your Consular Appointment arrives. In cases where a waiver is not needed it can also take from 10 months to a year, if the process is being driven by somebody who knows what they are doing. I have seen cases delayed 3 and 4 years due to a spouse who was doing it by themselves and not aware of the requirements and processes.
The absolute worse position of the options in this article is to be in is an immigrant spouse who has accumulated over 1 year of unlawful presence in the U.S. which triggers the 10 year bar (INA 212(a)(9)(B)(i)(II)) and who is only eligible to process their immigrant petition via outside the U.S. at their home country consulate. Not only must they leave the U.S. (and presumably their spouse and family), but for almost 2 decades the process required filing for a waiver (I-601) at the Consular post and then waiting for that Waiver packet to be reviewed and decided on by State Department officials, and this process kept many spouses waiting from anywhere from 3 months to a year. And the approval is not a sure thing either. There must be enough evidence in the Waiver packet to show the U.S. Citizen spouse would suffer extreme hardship if the immigrant spouse is not allowed to come into the U.S. to live.
Luckily, starting March 4, 2013, the Obama administration made some procedural changes (note: Procedural changes, not changes to the law) about how these waivers would be processed. Now USCIS will allow for the waiver applicant to apply while still here inside the U.S. thus negating the long wait outside and apart from their family and minimizing the time they will spend out of the country to less than 2 weeks (once approved). It also takes away the fear of applying and eventually leaving the U.S. because an applicant will obviously only leave if they have been approved.
Spouses of U.S. Citizens have always been in the best position to receive their papers the fastest out of all the immigrant relative categories, and now the new Stateside Waiver process has even made it better by easing the burden on families who need a waiver for unlawful presence. It’s never been better to be an immigrant married to a U.S. Citizen!
Read More of the Spring 2013 Newsletter:
- Where Criminal Defense Law & Immigration Law Intersect: Chaidez Court says Padilla Rule is NOT Retroactive
- Immigration: How to Immigrate your Foreign Born Spouse to the U.S.
- Criminal Defense: Consent Searches of Vehicles
- Legal Update, Success Stories, Core Values in Action
About the Author
Partner at Peek & Toland
Jeff has ten years of experience in criminal defense law and nine years of experience in immigration law. He graduated from St. Mary’s University’s School of Law in San Antonio, Texas and received two Bachelor of Arts degrees from The University of Texas at Austin. Jeff is fluent in Spanish and married to a Mexican attorney. He is a devoted husband and the father, an avid golfer and an elder at his church.
Read more about Jeff here.