How do we apply for residency for an illegal immigrant marrying a US citizen?

Asked over 4 years ago - Denver, CO

I am an undocumented immigrant brought to the US when I was about 6 yrs old, have lived here ever since. I am going to marry a US citizen. We are trying to figure out what we need to do to make me a legal resident.

Some have told us it would be better to get married in the country I was born in and then apply for residency, and others say we should get married here in the US and apply for residency? Need advice please! Thanks in advance!

Attorney answers (6)

  1. Barbara Ann Williams

    Contributor Level 9

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    Answered . Under current US Immigration Law, you are left with few options if you are indeed undocumented and came without papers (EWI). While ordinarily marrying a US Citizen would put you ahead in line for a green card, you will likely be unable to apply for a green card administratively without leaving the US and processing at a consulate abroad. However, voluntarily departing the US even to consular process will pose huge problems for you as under 212(a)(9)(B)(ii) of the Immigration Act, you will be barred from returning to the US for 10 years absent a waiver for any unlawful entry and overstay. Depending upon your home consulate, you may have a good chance of being granted a waiver and being able to return to the US with your green card without having to wait outside the US for 10 years. However, processing times and results vary thus making it especially critical that you consult competent immigration counsel before attempting to depart the US.

    Do not try this on your own. Subsequent unlawful and undocumented re-entries after your departure will only further complicate your situation should the waiver be improperly prepared and denied, thus subjecting you to even more immigration hurdles.

  2. Deniz Sevim Arik

    Contributor Level 10

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    Answered . Two questions: Did you enter legally, say with a border crossing card? Has anyone ever previously filed for you, and if so who, and when?

    You can get married here, and your spouse can file the underlying I-130 Petition for Alien Relative. The problem is if you did not make a legal entry and nobody filed for you before April 30, 2001, you are subject to a 10-year bar because you have more than one year of unlawful presence (by the way, I am assuming you are over 18 in answering this). This means that after the I-130 is approved, you would have to go to your home country and consular process with an I-601 waiver unlawful presence. You must be able to demonstrate extreme hardship to have a waiver granted, and some consulates can be very good about granting them, while others are not so generous.

  3. Michael D. Baker

    Contributor Level 4

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    Answered . §245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called "adjustment of status". Generally, persons who entered the U.S. without being inspected and admitted or paroled, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for "immediate relatives" of U.S. citizens and for certain EB applicants.)

    §245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased §245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were "grandfathered" into the benefits of §245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons (You may be one of them!) have been in a state of legal limbo since 1998.

    A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of §245(i). Under the new law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000).

    I hope that helps.

    Sincerely,
    Mike Baker

  4. Shah Iqbal Nawaaz Peerally

    Contributor Level 19

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    Answered . I will agree with the previous answer. You will need to benefit from INA 245(i) to be able to apply. If you leave the 10 year bar will probably kick in unless you are eligible for some sort of 601 waiver. Unfortunately such waivers are becoming harder and harder to obtain. You might want to talk to a good immigration lawyer before you proceed on leaving.

    Good Luck
    Shah Peerally

    Founder and Managing Attorney of Shah Peerally Law Group PC
    Law Firm Deals in Immigration law, Bankruptcy & Debt Relief


    Note: The above answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney client relationship is created unless a retainer is signed by the attorney and the client.

  5. Andrew Wilson

    Contributor Level 9

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    Answered . Your best strategy largely depends on whether you have proof/evidence that you last entered the U.S. legally.

    If you last entered the U.S. with inspection but you are an overstay, the good news is that you should be able to file for and obtain a green card from within the U.S. based on marriage to a U.S. citizen. It is true that while most individuals who are here as overstays and/or have worked without permission are ineligible to obtain permanent resident status from within the U.S., this is not the case if you are applying for permanent resident status based on marriage to a U.S. citizen.

    The big issue in your case is proving that you last entered the U.S. legally. If you had a passport stamped or was documented in anyway, that makes the process a little easier.

    Addressing the last lawful entry issue, he may still pursue permanent resident status from within the U.S. based on marriage to a U.S. citizen. This is generally known as the adjustment of status process and requires filing the I-130, I-485, I-765 (work permission), I-131, I-864 affidavit of support, I-693 medical etc.

    You can find info on the green card process based on marriage to a U.S, citizen at:

    http://srwlawyers.com/ImmigrationOptions/GreenC...

    If you did not enter the U.S. legally on your last entry, your case should be reviewed to see if 245(i) applies. You may also have the option of departing the U.S. and processing through a U.S. Conuslate, but you will likely trigger an unlawful presence bar and require a hardship waiver in order to be approved for an immigrant visa. Leaving the U.S. as an option now should be thoroughly reviewed and discussed before you make a decision.

    Regards,

    Andrew M. Wilson, Esq.
    Serotte Reich Wilson, LLP
    www.srwlawyers.com
    awilson@srwlawyers.com

  6. Sarah Kay Berry

    Contributor Level 8

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    Answered . I agree with the previous responses with respect to the law. As a practical matter, I'd add that it would be beneficial to speak to an immigration attorney in person. They'd be able to rattle off a number of questions that help identify what your best options are.

    For example: how old are you; has anyone filed a visa for you previously; where were your parents born; have you been a victim of a violent crime (and or domestic violence); what would life be like if you were deported (removed) - a hardship evaluation; etc.

    And certainly, if you apply for an I-601 waiver, don't do it alone. I know it can be expensive, but your staying in the U.S. is likely an investment, and while an ethical attorney cannot guarantee success, your chances are much better with legal guidance.

    Best wishes, and good luck.

    Sarah Berry
    SKBERRY Immigration
    Dublin, California

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