Can an undocumented immigrant get married in the U. S.

We usually get the following question in the office: Can an undocumented immigrant get married in the U. S? In this article we will let you know what happens and what are the chanced of obtaining a legal marriage in these cases.

Firstly, there is no law that prevents American citizens from marrying undocumented immigrants. However, the question is whether the alien will be able to get the Green Card through marriage.

This is a matter that should be discussed with an immigration lawyer. Call Curbelo Law today or book your consultation at our Ridgewood or Newark, New Jersey offices.

Can an undocumented immigrant Really Get Married In The US In 2023?

As we mentioned at the beginning, yes, it is possible to get married in the United States while being illegal. In fact, many American citizens regularly marry undocumented immigrants. But it must be taken into account whether the undocumented immigrant entered the US legally or illegally.

Getting Married With An Undocumented immigrant With Legal Entry

Marriages between a US citizen and an undocumented immigrant who entered the country legally is the most direct path to adjustment of status in the United States. Spouses of US citizens are considered by immigration law to be immediate relatives. 

These spouses considered immediate relatives will be able to adjust their status even if they overstay their visa. This as long as the alien has not left the US without a permit to do so.

Marriage With An Undocumented Individual With Illegal Entry

If your foreign spouse entered the US illegally and has spent more than 6 months (180 days) in the country, they will need to travel to a US consulate or embassy abroad for their Green Card interview.

However, the 3 or 10 years bars could be a barrier to application. If your foreign spouse is undocumented and entered the US without inspection, they may be eligible for an unlawful presence waiver.

Certain applicants who are relatives of US citizens may file Form I-601A , Application for Provisional Unlawful Presence Waiver if inadmissible due to unlawful presence. This is indicated by the Immigration and Nationality Act (INA), section 212 (a) (9) (B). 

You will need to submit the form before you leave the US to go to the US embassy or consulate.

Can A Legal Permanent Resident get married with An Undocumented immigrant?

Lawful permanent residents can marry undocumented immigrants. The process works pretty much the same as if they were a US citizen. However, there are two important differences to note.

1. The application process takes approximately 18 months. You will need to wait for NVC to make a visa available to you.
2. You should make sure that you, as a lawful permanent resident, may be eligible to apply for a provisional waiver. Otherwise, your spouse will be barred from re-entry.

We remind you that permanent residents may be eligible for the process to obtain US citizenship after 5 years of obtaining their Green Card.

What Does An Immigrant Need To Get Married In The United States?

So, if an undocumented immigrant can get married in the US, what does he or she need? The basic requirements for an immigrant to legally marry in the US are as follows:

• Be of legal age.
• Have a petition by a citizen or permanent resident through Form I-129F, Petition for Alien Fiancé or Fiancée.
• Obtain the K-1 fiancé(e) visa.
• Get married within 90 days after being admitted to the United States.
• Have a bona fide marriage and not a fraudulent one.

Remember that if you marry a US citizen or resident, the alien will be able to obtain permanent residence.

Undocumented immigrants who have a felony or other criminal offenses may become inadmissible. Anyone who has been arrested or violated immigration laws should speak with our immigration attorney, Carolina T. Curbelo. Do this before submitting any forms to USCIS.

How To Get The Green Card By Marriage?

There are two legal ways to obtain a Green Card by marriage. To do this, the citizen or permanent resident spouse must:

1. File an immigrant visa petition in the US. But combining the application with an adjustment of status application for the spouse to obtain the Green Card in the United States.
2. File an immigrant visa petition in the US. Subsequently, the foreign spouse must pick up their immigrant visa petition in the country of origin through consular processing.

Note that if a citizen or resident marries an undocumented immigrant with illegal entry, they will not have the first option.

Documents To Apply For The Green Card

The process for applying for a Green Card for a foreign spouse overstaying in the US is very similar to any other adjustment of status for a spouse. To adjust status, the following forms are generally required:

• I-485 , Application to Register Permanent Residence or Adjust Status .
• I-130 , Petition for Alien Relative.
• I-130A , Supplemental Information for Spouse Beneficiary.
• I-864 , Affidavit of Support.
• I-693 , Medical Report and Immunization Record
• I-765 , Application for Employment Authorization (optional).
• I-131 , Application for Travel Document (optional).

Our experienced attorney, Carolina Curbelo, will tell you which forms apply to your case.

Process To Apply For The Green Card For An Undocumented Spouse

In general, there are 4 steps to follow to apply for a Green Card for an undocumented spouse. These are:

1. File form I-130 with USCIS stating that the spouse will file their green card application at a US consulate or embassy. USCIS typically takes 6-8 months to approve the I-130.
2. If USCIS approves the I-130 form, you must file the visa application and pay the corresponding fee.
3. In case of requesting a provisional waiver, you must obtain a receipt from the National Visa Center (NVC) showing that you have submitted your visa application. The waiting time to receive a decision on the exemption can take up to 6 months.
4. If the waiver application is approved, your spouse must attend the interview with the US consulate or embassy in your home country.

Because waiver applications are risky, risking a 3-year or 10-year bar, many couples choose not to apply. Therefore, it is essential that you get the advice of a good immigration attorney.

Can I Work While My Green Card Application Is In Process?

Foreign spouses may obtain employment authorization that allows them to work in the US. As an adjustment of status applicant, the spouse may be eligible for work authorization. Once approved, you will be issued an Employment Authorization Document (EAD).

To apply for the EAD, you will need to file Form I-765 with USCIS. You can file it with your adjustment of status application or while it is pending. 

Can I Travel While My Green Card Application Is In Process?

Generally, adjustment of status applicants will be able to re-enter the US if they have traveled abroad. However, it is important that they previously have an approved advance parole document. 

Applicants who have accumulated unlawful presence in the US should take precautions before traveling outside of the US. To do so, we recommend that you contact attorney Carolina Curbelo to learn about your possibilities. 

To apply for advance parole, applicants will need to file Form I-131 with USCIS.

How Does DACA Affect My Spouse’s Eligibility For A Marriage Green Card?

DACA (Deferred Action for Childhood Arrivals) recipients may be subtly affected in Green Card eligibility by marriage. Therefore, you must take into account the following considerations:

• “Unlawful presence” does not begin until a person turns 18 years old.
• If the spouse applied for DACA before their 18th birthday or within 180 days of their 18th birthday, they may not be subject to a re-entry bar.
• DACA recipients can generally travel outside of the US and return legally. All this is thanks to a document called “Advance Parole”. 
• If the spouse with DACA last entered the US with their travel document, they should be able to apply for the Green Card by marriage within the country. 

For more information regarding this program, we invite you to visit our dedicated article on the requirements for DACA.

How To Sponsor My Undocumented Spouse?

You, as a citizen or permanent resident, can sponsor an undocumented spouse through a family petition to the United States.

For more information on this, visit our article dedicated to bringing your foreign spouse to the US.

My Undocumented Spouse Entered The United States Illegally, Can I Sponsor Their Green Card?

If your undocumented spouse entered the US illegally, applying for a Green Card is much more difficult. For this, it is important that you have an experienced lawyer by your side to provide legal advice regarding your case.

My Spouse Is An Undocumented Immigrant With An Expired Visa, Can I Sponsor Their Green Card?

Many of the undocumented immigrants came to the US legally. For example, some arrived on a valid nonimmigrant type of visa and then do not leave the country. The marriage Green Card application is treated as if your spouse had legal status.

Your spouse must be careful not to leave the country before receiving the Green Card. Otherwise, you would not be able to enter again.

Frequently Asked Questions About Marriage In The United States

What Happens If I Get Married In The United States With A Tourist Visa?

If the spouse enters the US on a tourist visa to meet someone and later get married, it won’t be considered a good scenario since this can be considered as fraud. In addition, it may affect the spouse’s eligibility for a Green Card or obtaining future US visas.

For more information read everything regarding the B-2 visa for temporary tourists, we also invite you to read our article: “ I stayed with a tourist visa in the United States ”.

What Is Marriage Fraud?

If the foreign spouse obtained a visa for a declared purpose. For example, the B-1 business visa, but then apply it for a different use, such as marriage, the marriage can be considered a fraud. Note that:

• If a marriage is considered fraudulent, the application for permanent residence will be denied. 
• To obtain a Green Card based on a marriage, the foreign spouse must meet the eligibility criteria. Therefore, the marriage must be legally recognized as one of “good faith”.
• If a non-citizen marries a US citizen solely for a Green Card and neither intends to live as a married couple, it will be considered marriage fraud.
• Convictions of marriage fraud can be punished by a sentence of 5 years in prison and a fine of $250,000.

How Long Does One Have To Be Married To Fix their immigration Documents and status?

Normally, the terms to process a residence card take a period of 10 to 38 months. The term will depend on whether you are married to a US citizen or a lawful permanent resident.

Spouses of US citizens will get their Green Card much faster than spouses of permanent residents.

When Can Someone Be Permanently Barred From The US? 

In some cases, a foreign spouse may be permanently barred from entering the United States if:

• They have entered the United States without documentation more than once.
• Re-entered illegally after being deported.
• They have entered illegally after being in the US without any legal status for more than 1 year.

Each case is different, for this you must consult with Curbelo Law to determine if you may be eligible for some type of immigration waiver or exemption. 

Can My Spouse Re-Enter The United States If Deported?

If your spouse had a removal order and it is after 1997, the law provides a 5-year re-entry bar. The prohibition begins to run from the moment the spouse leaves the US. 

However, it is possible to apply for a waiver. The foreign spouse must file Form I-212, Application for Permission to Reapply to Enter the US After Being Deported or Removed. In addition, the spouse must show that they had reasonable cause for not appearing at a deportation hearing.

How Can Curbelo Law Help You Achieve Marriage In Your Case?

After reading our blog “Can an undocumented immigrant get married in the US” you will have noticed that there are immigration options and reliefs available in some scenarios. 

Attorney Carolina Curbelo is very familiar with the types of issues that could affect a couple where one spouse does not have legal immigration status. The best way to proceed in case of getting married and being illegal, is to have a previous consultation with our experts.

Let us analyze your case from our offices in Ridgewood, New Jersey where our online team of specialists in immigration law can be your best ally.