Americans are allowed to marry whomever they want, even if that person entered the country illegally and is not a U.S. citizen. This does not, however, guarantee a happy ending. In fact, the undocumented status of a spouse can cause several complications.
Take, for example, the U.S. government stimulus checks issued during the pandemic. An estimated 1.2 million households did not receive stimulus checks because married couples filing income taxes jointly in which one spouse used an Individual Taxpayer Identification Number (ITIN) instead of a Social Security Number and did not qualify for a stimulus check.
That is just one example of how couples and their families can be affected when a spouse did not enter the country legally. Nonetheless, there may be steps you can take to rectify the situation.
At Gurian Group, P.A., my goal is to work with undocumented immigrants in Miami and throughout Florida who are building lives here and need legal status to continue to do so. I help my clients seek solutions to problems with their immigration status. Contact me today to request a consultation.
How Marriage to a U.S.
Citizen Affects Your Rights
If you marry a U.S. citizen, you become an “immediate relative” of your spouse. Immediate relatives are eligible for green card status, but if you entered the country illegally, you will not be able to go through the normal process of applying for permanent residency.
Possible Negative Consequences
Attempts to remedy the problem of obtaining legal status after marrying a citizen when you are an undocumented immigrant will be affected by the length of time you have remained in the U.S. illegally.
If you have stayed in the country for more than six months, or 180 days, you will need to apply for a green card at a U.S. consulate outside of the U.S. Because doing so will make the consulate aware of your undocumented stay, you could be penalized for it. Penalties include not being allowed back in the U.S. for three years. If you stayed in the U.S. illegally for more than one year, the penalty could be 10 years.
Individuals who entered the country legally with a visa but remained after the visa expired may qualify for adjusting their status through an application process that does not require them to leave the U.S.
The Process You Will
Need to Go Through
If you have been in the country for less than 180 days, you should leave and apply for an immigrant visa at a U.S. consulate in your home country. That way, you can avoid being penalized for an undocumented stay. Make sure you can produce documentation that proves when you arrived in the U.S. and when you left.
If your stay exceeds 180 days, you may be able to apply for a provisional waiver before you leave the U.S. to return to a consulate in your home country. Provisional waivers are not easy to obtain. You must prove that your inability to remain in the U.S. will cause extreme hardship to your spouse, for example, because they are severely ill or disabled and you provide care for them. If the waiver is granted, you still need to return to the U.S. consulate in your home country to apply for an immigrant visa.
If you do not qualify for a waiver, and you have remained in the country for more than 180 days without documentation, you will need to leave the country and apply for an immigrant visa at the U.S. consulate in your home country. You potentially may not be able to return for three to 10 years.
Turn to an Experienced
Ideally, you would have entered the U.S. legally, met a U.S. citizen, fell in love, married, and applied for permanent residency before your visa expired. Sometimes, though, life does not happen that way. You may have built a life with someone here who does not have proper legal status.
Immigration is complicated and the process can be confusing. An experienced immigration attorney can help you navigate the complexities of U.S. laws and provide the best opportunity you have for obtaining legal status.
At Gurian Group, P.A., I offer clients in Miami and throughout Florida years of experience in immigration law. I also offer them compassion for their situation and their desire to live in the U.S. If you entered the country illegally and have married a U.S. citizen, you need solid legal representation in immigration matters. Call my office today.