If you are an undocumented spouse of a U.S. citizen, you will need to take the steps toward becoming a U.S. citizen yourself. There are different legal avenues in place that can help undocumented immigrants married to U.S. citizens so that they can legally stay in the United States. However, you will need to choose the right legal option and provide enough documentation to establish the relationship in order to qualify. Here is everything you need to know about pursuing citizenship as an undocumented immigrant married to a U.S. citizen.
Undocumented Spouses of U.S. Citizens: Legal Options
If a U.S. citizen is married to an undocumented immigrant, there are several different options their spouse can take advantage of when it comes to immigration. How challenging this process is depends on different factors in each situation, such as whether or not you legally entered the United States or if you overstay on a visa.
No matter your situation, it is essential that you first hire an immigration attorney before you begin the process of pursuing legal status in the United States. An immigration attorney will be up-to-date with the recent immigration law changes and can help you evaluate your options to find the right fit. They can also help you with your petition or application and address any issues that may come up along the way.
Here are a few legal options undocumented spouses of U.S. citizens can take advantage of to obtain temporary or permanent legal status.
Marriage-Based Petitions
The most common and straightforward option for undocumented individuals married to a U.S. citizen is to apply with a marriage-based petition. This allows the U.S. citizen spouse to sponsor their undocumented immigrant spouse so that they can receive a green card. However, this process will look different depending on whether or not you entered the United States legally but overstayed on your visa or if you entered illegally.
If you enter the United States legally, you will need to submit an application to adjust your status, an immigration visa petition, and an affidavit of support. This applies whether or not you overstay your visa as long as you enter the U.S. legally.
On the other hand, this process will be a bit more complex if you enter illegally, as you will have to leave the United States before applying for a marriage-based petition. This applies as long as you have been in the United States for less than 180 days. If you have been in the U.S. for more than 180 days, you may be subject to being barred from entering the U.S. for three or 10 years.
Provisional Unlawful Presence Waiver
If you entered the United States illegally or entered legally with a visa but overstayed, there is another option available. The Provisional Unlawful Presence Waiver or I-601A waiver provides an option that could allow you to obtain legal status, despite being ineligible for a marriage-based petition.
To qualify for this waiver, you must meet the following eligibility requirements:
- Be physically present in the U.S.
- Be at least 17 years old.
- Provide evidence that the U.S. citizen spouse would experience extreme hardship if the waiver is denied.
- Provide an approved immigrant visa petition or have paid the Department of State immigrant visa processing fee.
- Believe you are inadmissible solely due to unlawful presence.
To apply for this waiver, you need to file form I-601A with the USCIS and pay the filing fee. For the best chance of approval, you need to provide substantial evidence demonstrating why you qualify for this waiver.
Other Options
Although obtaining legal status through a marriage-based petition or a waiver is the most popular option, there are a few other avenues you could take. For instance, you may be able to apply as an asylum seeker if you meet the eligibility requirements. To qualify, you must be able to prove that you are in fear of persecution or have been persecuted in your home country and the protected grounds apply to your situation.
Military parole in place is also an option for undocumented spouses of U.S. citizens as long as your U.S. citizen spouse is a member of the U.S. military. This would grant you temporary legal status as well as work authorization, and you would have the option of applying for adjustment of status without having to leave the U.S.
Another potential option for undocumented spouses is adjustment of status under section 245i of the LIFE Act. This is designed for immigrants who would otherwise be ineligible to adjust their status. To take advantage of this option, you must have an employer who is willing to sponsor you for a green card, and you must meet the application requirements.
Challenges Undocumented Spouses of U.S. Citizens May Face
Depending on the legal avenue you take as an undocumented spouse, you may face a variety of challenges when pursuing citizenship. However, the main challenge most undocumented spouses face, no matter the pathway they pursue, often comes down to proving that the relationship is valid.
The USCIS commonly looks out for marriages that it considers to be fraudulent and are based on the immigrant spouse getting a green card. You’ll need to provide extensive documentation about your relationship to prove that the relationship is valid.
You will also need to meet the eligibility requirements for the immigrant pathway you take to become a U.S. citizen. These eligibility requirements will vary, but they are often independent on things like your background, filing time, and income requirements. You will need to be prepared to provide additional documentation, such as birth certificates, marriage certificates, decrease of divorce, passport photos, etc.
Failure to provide any of the proof or documentation that the USCIS requires could cause significant delays. You may receive a request for evidence, or you may even have your application or petition denied, especially if fraud is suspected.
Hire an Immigration Attorney Today
Are you an undocumented person marrying a U.S. citizen? Contact us today at U.S. Immigration Law Counsel at 800-666-4996 to speak with an immigration attorney about your situation. We will deal with the government, so you don’t have to!
