Does a person who entered the U.S. illegally have to go back to their country to become a U.S. citizen through marriage?

Asked almost 2 years ago - Houston, TX

I'm a U.S. citizen. My fiance entered the U.S. illegally. He has been living in the U.S. for many years illegally. When we get married and I petition for him, will he have to go back to his country of origin to become a U.S. citizen and is there a waiting period? Thanks!

Attorney answers (5)

  1. Veronica Tunitsky

    Contributor Level 18

    9

    Lawyers agree

    Answered . In all probability, yes. The current process requires a showing of lawful entry in order to adjust in the us. Those who can't have to process their cases at the us consulate in their home country. Unfortunately, by leaving the country they trigger an unlawful presence bar thy needs to be waived by showing extreme hardship to a us citizen spouse, for example, before they are permitted to return lawfully.

    We're all eagerly awaiting the new regulations that would allow certain individuals t apply for the waiver in the us ( though they would still be require to finalize the case in their home country), but that program is not yet in effect.

    You should definitely consider consulting with an attorney who is experienced in waivers as they are very complex and should not be attempted to be done pro se. I work extensively on matters like these.

    The information offered is general in nature and not meant to be relied upon as legal advice. Please consult an... more
  2. J Charles Ferrari

    Contributor Level 20

    6

    Lawyers agree

    Answered . Please do not confuse legal permanent residence with US citizenship. Confusing the two can result in a false claim to US citizenship. A false claim to US citizenship results in deportation and a permanent bar from the US.

    A US citizen spouse cannot petition for citizenship for a non-US citizen spouse. They can only petition them for a green card, permanent legal residence.

    On the facts you give, the only way to avoid having to leave the US is if your fiance qualifies for 245(i). There are no facts in your posting indicating that this is the case.

    You should retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise you, and handle the case.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not... more
  3. Christian Schmidt

    Contributor Level 19

    5

    Lawyers agree

    Answered . He will have to leave the U.S. and apply for an immigrant visa in order to become a permanent resident (only once he has been a permanent resident for a certain time will he be able to become a U.S. Citizen). However, he will trigger a 10 year bar that prevents him from returning to the US even when you petition him if he leaves because of his unlawful presence. He will need a hardship waiver to overcome the bar. You should consult with an immigration attorney for an assessment of his case.

  4. Shokry G Abdelsayed

    Contributor Level 11

    5

    Lawyers agree

    Answered . At the present time, yes, if he had no other petitions filed earlier, he would have to leave, but that would trigger a 10 year bar against him. However, there may be a provisional waiver regulation passed soon, where instead of leaving, he will be able to apply for the waiver in the US and obtain a result in the US. So, I recommend you consult with an experienced immigration attorney on this.

    Contact Shokry G. Abdelsayed, Esq. at 201-471-7989, NY and NJ. Answers on AVVO do not constitute legal advice and... more
  5. Haroen Calehr

    Pro

    Contributor Level 17

    1

    Lawyer agrees

    Best Answer
    chosen by asker

    Answered . You cannot sponsor your spouse to become a US citizen. You can potentially sponsor him for an immigrant visa and once he goes through the process of obtaining his green card then if he remains married to you for 3 years he can apply for naturalization and eventually be sworn in to become a US citizen.

    Here's the problem with you fiancee's case. First of all you need to get married to him. Second, unless he had a previous application filed for him prior to April 30, 2011, and he's locked in (grandfathered into the old expired law called INA 245(i), OR if he was "waived into the US" at the border by an immigration inspector (USCBP), even though he had no visa and passport but if he made a proper "procedural entry" into the US, e.g. he drove into the US with a US citizen who was asked whether everyone is a US citizen and then "waived in" to the US, thats the same as if he legally entered, then you could apply for his green card from within the US. BUT, if not, then look at the other colleagues answers. Let us know if you need help with the waiver which is very complex and we've had good success with on many clients and cases.

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