What happens if I don’t have immigration status, but am marrying a US Citizen or Permanent Resident?

One of the most common and well-known methods of gaining legal immigration status in the United States is via marriage to a US citizen (“USC”) or lawful permanent resident (“LPR”), commonly known as a green card holder.  If you are granted a green card through marriage to a USC, you are eligible to apply for citizenship three years later. However, the mere fact of getting married to a USC or LPR does not necessarily mean that you can get legal immigration status.  Even if you can, the process can be lengthy and difficult. There are several pitfalls that can make someone ineligible to obtain legal status even if they are married to a USC or LPR.  Things such as multiple unlawful entries to the United States, criminal history, or other issues may make it impossible.  If you are thinking of applying for status, it is important to sit down with an experienced attorney to ensure that everything is in order first and that you have a viable way to “adjust” or obtain legal permanent residence through your marriage. 

The process for obtaining legal status when marrying a USC or LPR can vary depending on how the person seeking immigration status entered the United States.  If you entered legally, even if you have overstayed your visa, you have a very different process from someone who entered without inspection.  Generally, someone who entered legally and is married to a USC can apply directly for a green card without the need to leave the country or seek a waiver, often called a pardon, for their unlawful presence, or time spent in the United States while not in legal immigration status. 

By contrast, if you entered the United States unlawfully (without any visa or other legal permission to enter the country) you will generally have a ‘bar’ or limitation to your ability to obtain legal status. In order to overcome such a bar, you will be required to seek a waiver, or pardon, that is specific to your situation and you will need to appear for an interview in your home country.  Unlike the person who entered legally, you will not be eligible for employment authorization during the case. 

If you need to seek a waiver, you need to show that your qualifying relative will suffer extreme hardship if the waiver, or pardon, is denied.  Basically, you need to show that it is essential that you and your qualifying spouse live together, and that it is impossible for you to live together in your home country.  There are different ways to show the extreme hardship, but you cannot solely depend on economic hardship. Extreme hardship factors may include you and your family’s ties to the US, underlying physical or mental health issues, raising your children, financial concerns, family planning, the USC’s fluency in your native language, among others. As mentioned above, some cases aren’t eligible for a waiver, so speaking to an immigration attorney is vitally important before attempting to submit anything to immigration.

When Walther Goss Law represents you in your case to obtain permanent residency (green card), we will be there to explain and help every step of the way. Whether it’s a straightforward adjustment after a legal entry to the United States, or if we need to seek a waiver and leave the country to complete your immigration process, we will ensure that you have the best possible chance at succeeding in your case, and that you understand the process you are undertaking.

If you are married to a USC or LPR, or thinking of doing so, please contact Walther Goss Law to schedule an immigration consultation. You will always meet with one of our immigration attorneys at your first appointment, where we sit down with you and your spouse to discuss your situation and explore your options.

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