I am married to a legal permanent resident who has a green card, but I don’t have immigration status. Is it possible for me to obtain a green card through marriage?
As a foreign national who is in a marriage to someone with valid immigration status, you may be able to obtain some immigration status for yourself — eventually.
In general terms, regardless of whether you are legally or illegally present in the United States, your marriage to a legal permanent resident does not make you immediately eligible to apply for a green card. That is because only noncitizens who are married to U.S. citizens (contrasted to legal permanent residents) may apply for permanent residency without a wait. That said, your legal permanent resident spouse can begin your immigration process right away. This would result in your eventually obtaining valid immigration status.
Filing Form I-130, Immigrant Petition for Alien Relative
As mentioned before, as the spouse of a legal permanent resident, you are likely not immediately eligible to receive a green card through marriage. This is because U.S. immigration law limits the number of spouses of permanent residents who may become permanent residents in any given year. But, even if you can’t yet apply for a green card, you can reserve your place in line.
Form I-130, Immigrant Petition for Alien Relative, allows your legal permanent resident spouse to put you onto the waiting list for an immigrant visa. Then, when one becomes available, you will be able to file for a green card, assuming you meet the legal requirements to do so. Additionally, if your spouse becomes a U.S. citizen, you will move to the front of the line and can immediately apply for a green card.
Filing the immigrant visa petition requires obtaining certain supporting documents. You should work to obtain information about the immigration and biographical histories for both you and your spouse. Our experienced team of immigration lawyers can help you determine which supporting documentation is required and assist you in obtaining it.
Please remember, though, that having a pending I-130 doesn’t give you any immigration status. So, it is not legal for you to be in the U.S. while you wait to get to the front of the line if you do not have some other valid immigration status.
Adjustment of Status Now
If you came into the U.S. legally, have never fallen out of immigration status, have never worked illegally in the U.S., and an immigrant visa is immediately available, you can apply for a green card. The legal term for this process is adjustment of status.
Some noncitizens qualify to apply for a green card, even if they do not meet the four qualifications listed above. Those individuals began the immigration process before April 30, 2001. These immigrants still must wait in line, but the requirements regarding legal entry and valid immigration status usually don’t apply to them.
Adjustment of Status When Your Spouse Becomes a U.S. Citizen
U.S. immigration law has built-in benefits for U.S. citizens. For their spouses, an immigrant visa is immediately available. So, if your spouse is eligible to become a U.S. citizen, you might then immediately be able to file for a green card through marriage. This might even be true if you have not maintained a lawful immigration status (provided you entered legally) or if you have worked without authorization.
Getting an Immigrant Visa in Your Home Country
If you are not eligible to adjust status in the U.S., you will need to leave and apply for an immigrant visa in your home country. Once you have obtained the immigrant visa, you will be able to reenter the U.S. and apply for a green card.
It becomes legally tricky to return to your home country to apply for a visa if you have ever been in the U.S. without a valid immigration status. This is because the U.S. has harsh penalties for being unlawfully present. If you acquire six months of unlawful presence, the government will bar you from re-entering the U.S. for three years. More than a year of unauthorized presence will trigger a ten-year re-entry bar. These bars are initiated upon departure from the United States.
Fortunately, in some circumstances, the federal government will forgive periods of unlawful presence by issuing a waiver. Even better, because of recent changes to U.S. immigration regulations, you may be able to receive approval of an unlawful presence waiver before you trigger the bar by departing the U.S.
Contact George McCranie Law Firm Today
At the George McCranie Law Firm, we frequently prepare waivers for unlawful presence. Give our office a call to discuss your case prior to leaving the U.S. if you have ever been in the U.S. without a valid immigration status, or if you have questions about obtaining a green card through marriage.