Marriage-Based Green Card For Persons Already In The U.S.

There are several marriage-based green card options for people already in the U.S., depending on marriage either to a U.S. citizen or legal permanent resident and whether they entered the U.S. legally or illegally.

Entry Into The U.S.

Legally

You entered legally if you were inspected at a border or port of entry such as an airport, seaport, or bus station by a U.S. Border Patrol officer.

Generally, people legally enter the U.S. through:

• A valid non-immigrant visa, such as a tourist visa, student visa, temporary worker visa, etc.
  
• A border crossing card, (a special pass allowing regular entries), or
  
• The Visa Waiver Program
  

Despite currently being considered an illegal in the United States, if you entered the U.S. through legal means (staying past the date of authorized stay), the consequences are different.

Illegally

Anyone who has entered the U.S. without first being inspected by a U.S. Border Patrol officer is considered to have illegally entered the U.S.

Some common ways of illegally entering the U.S. include getting into the trunk of someone’s car, hiding in a truck that is crossing the border, sneaking across an unguarded point of the U.S. border. This is called “Entry Without Inspection” or “EWI”.

If you have illegally come to the U.S. more than once, spent a total of 1 year or more during previous visits, and/or were deported during a visit, you may be permanently barred from immigrating to the United States. Consult an immigration attorney before proceeding any further.

Marriage to a U.S. Citizen

There are several options:

• Get married and immediately apply for a green card. Form I-130 and Form I-485 can be applied together.
  
  I-130 Relative Petition
  
  I-485 Adjustment of Status
  
  
  • Entered legally
    This option is available even if you are out of status (your staying beyond the expiration of your current visa status). You must choose this option, and not the others mentioned below, if you have overstayed 6 months or more since April 1, 1997. If you leave the U.S., you would be barred from returning for 3 or 10 years, depending upon the length of unauthorized stay.
    
    

  • Entered illegally
    Aliens who entered the U.S. illegally are usually not eligible to file for an Adjustment of Status.
    
    However, you may be eligible to adjust the status in the U.S. if an employer or family member filed an immigrant petition on your behalf either:

    1. before Jan 14, 1998, or
       
       
    2. between Jan 14, 1998 and Apr 21, 2001, if you can also prove that you were physically present in the U.S. on Dec 21, 2000.
       
       
    If your visa petition was approved, or was denied only because of a mistake by USCIS, you may be allowed to adjust status in the U.S.
    
    If you fall into this category, get married in the U.S. and immediately apply for a green card. Form I-130 and Form I-485 can be applied together.
    
    

  Your spouse will be required to accompany you to the Adjustment of Status interview. An attorney can also accompany you to the interview. If you knew your spouse before arriving in the U.S. on a temporary visa such as tourist visa, your real intentions might be suspected at the interview and USCIS may demand that you file an additional application requesting a waiver of your visa fraud.
  
  
• Leave the U.S. before you have stayed illegally by 6 months or more and apply at a U.S. consulate to return on a fiance visa.
  
  If you stayed illegally 6 months or more since April 1, 1997, a person qualifies for a waiver based on a “qualifying relationship to a USC”. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” whereas a waiver for criminal history (INA 212(h)) requires it to be established “that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.”
  
  In order to get a waiver, the U.S. citizen has to prove “extreme hardship” with evidence. Each consulate provides 601 filers with a list of “acceptable” arguments. The guidelines are the same for all consulates. Waiver approval rates differ between consulates since there is no standard for “extreme hardship”.
  
  More information on Extreme hardship waiver.
  
  If you have children between the ages 18 and 21 who are not the biological children of your sponsoring spouse, and you want to bring them to the U.S., you should, if possible, leave and apply for a fiance visa. Children under 21 can accompany a fiance on his/her visa, but only children under 18 can accompany a just-married spouse on an immigrant visa or apply for a green card.
  
  
• Leave the U.S. before you have stayed illegally by 6 months or more, get married outside the U.S. and go through regular family based green card processing.
  
  I-130 Relative Petition
  
  Consular Processing or K3 Visa
  
  If you have stayed illegally 6 months or more, accompany your application with a request for a waiver of your illegal stay. You will need to prove that denial of your visa would cause extreme hardship to your U.S. citizen spouse or children. Extreme means much more than the sadness they will feel, such as several medical problems. If the waiver is denied, you may be barred from entering the US for 3 (overstay of 6 months or more but less than 1 year) or 10 (overstay of 1 year or more) years.
  
  No matter how efficient the U.S. consulate is in your home country, the law requires that you stay in your home country for a minimum of 3 months before your approval.

If you leave the U.S. to apply for consular processing or a K3 visa, collect and keep all evidence of your visits to and departure from the U.S., such as airline tickets, boarding passes, store receipts, medical records, credit card statements, and anything else relevant.

Do not leave the U.S. if you or your children have overstayed for 6 months or more, at any time since Apr 1, 1997. You could be barred from re-entering the U.S. for 3 years (overstay of more than 6 months but less than 1 year) or 10 years (overstay of 1 year or more).

Marriage to Permanent Resident

There are several options:

• Fiance visa is NOT an option. It is available only to the fiances of U.S. citizens living outside the U.S.
  
  
• Wait until your fiance becomes a U.S. citizen, then explore the options described above under ‘Marriage to U.S. Citizen’.
  
  
• Get married in the U.S. However, due to annual quotas and a long waiting list in the F2 category, you will not be able to apply for an Adjustment of Status for several years until the priority date becomes current. Until then, you will not be able to legally live in the U.S. with your spouse unless you have another type of visa that allows you to stay the entire time. There are several options:
  • If you entered the U.S. legally, you have never been out of status, you have never worked illegally in the U.S., and your priority date is current, you can file the application for Adjustment of Status in the U.S.
    
    As it would take 3 to 5 years for the priority date to get current from initial petition, being in legal status may only be possible if you are in the U.S. on a student visa or temporary work visa, not a tourist visa that is usually for 6 months with one possible extension of another 6 months. If you are out of status, leave before 6 months of unauthorized stay accumulates (to avoid 3 or 10 year bar from re-entering) and go through consular processing.
    
    

  • Stay in the U.S. illegally, hoping to do an Adjustment of Status in the U.S. when the priority date is current. However, you can be deported at any time.
    
    If you entered the U.S. illegally, most likely you would not be allowed to adjust the status in the U.S. If your spouse becomes a U.S. citizen, you can adjust the status as described above in ‘Marriage to a U.S. citizen’.
    
    You may be eligible to adjust the status in the U.S. if an employer or family member filed an immigrant petition on your behalf either:

    • before Jan 14, 1998, or
      
      
    • between Jan 14, 1998 and Apr 21, 2001, if you can also prove that you were physically present in the U.S. on Dec 21, 2000.
      
      
    If your visa petition was approved, or was denied only because of a mistake by USCIS, you may be allowed to adjust status in the U.S.
    
    

  • Leave the U.S. before you have stayed illegally for 6 months or more, wait until priority date becomes current, and go through for Consular Processing.
    
    
  • Leave the U.S. after you have stayed illegally for more than 6 months but less than a year or more than a year, wait until the priority date becomes current as well as a 3 or 10-year inadmissibility period (or apply for a waiver), and go through Consular Processing.
    
    If you have stayed illegally 6 months or more, accompany your application with a request for a waiver of your illegal stay. You will need to prove that denial of your visa would cause extreme hardship to your U.S. citizen spouse or children. Extreme means much more than the sadness they will feel, such as several medical problems. If the waiver is denied, you may be barred from entering the U.S. for 3 (overstay of 6 months or more but less than 1 year) or 10 (overstay of 1 year or more) years.
    
    

If you leave the U.S. to apply for consular processing, collect and keep all evidence of your visits to the U.S. and departure from the U.S., such as airline tickets, boarding passes, store receipts, medical records, credit card statements, and anything else relevant.

Waiting Until Spouse is a U.S. Citizen

The spouse of a U.S. citizen is considered an immediate relative, and there is no priority date, annual quota, or big waiting period. On the other hand, the spouse of a permanent resident is considered under the F2A preference category that has an annual quota and waiting period of several years.

It is not advisable to wait until the spouse is a U.S. citizen to file the petition for a green card. It is better to get started as soon as possible when the petitioner has a green card, and if the petitioner becomes a U.S. citizen, it is easy to upgrade the petition. It is important to get in the line as soon as possible. There is no advantage in waiting to become a U.S. citizen. Moreover, if the naturalization process is delayed, it will add extra time before you begin the process of obtaining a greencard.