Family reunification has traditionally been a cornerstone of U.S. immigration policy, with a major emphasis on allowing immediate relatives—defined in immigration law as spouses, minor children, and parents of U.S. citizens—to live together in the United States.
In many cases, it’s possible to apply for a marriage green card for an undocumented spouse.
The risks, expenses, and timelines vary depending on whether the sponsoring spouse is a U.S. citizen and whether the undocumented spouse entered the United States illegally.
Given recent increases in immigration enforcement, including against people who have no criminal record, many families are deciding that the benefits of obtaining a green card for an undocumented spouse outweigh the risks and expense of the application process.
Here’s what you need to know about applying for a marriage-based green card for an undocumented spouse.
If you are a U.S. citizen and your spouse entered legally but overstayed
The good news is that if you are a U.S. citizen and your spouse entered the United States “with inspection”—meaning that he or she was inspected by a Customs and Border Protection (CBP) agent, and had a valid visa or entered under the Visa Waiver Program—the application process for a marriage-based green card is the same as if your spouse had legal status.
If this is the case, there’s arguably little downside to applying for a marriage-based green card. The undocumented spouse should, however, be extremely cautious about leaving the United States until he or she has received his or her green card. If your spouse leaves the United States, he or she could be unable to return for three or ten years, depending on how long he or she was present in the United States without legal immigration status. Click here for more information on the consequences of overstaying a visa.
Your spouse may be able apply for a green card—but he or she must leave the United States in order to do so.
If your spouse entered the United States illegally but has been in the United States for less than 180 days, he or she could return home and apply for a green card through the U.S. consulate, just as someone would do if he or she were living abroad and applying for a marriage-based green card.
If your spouse has been in the United States for more than 180 days without legal status, he or she will be subject to a bar from entering the United States for either three years or ten years. To avoid this bar, your spouse would need to apply for a provisional waiver to be able to return to the United States sooner.
Couples in this situation generally need to do the following:
- Submit Form I-130 to U.S. Citizenship and Immigration Services (USCIS), making sure to indicate that your spouse will be applying for a green card from abroad.
- If your I-130 is approved (generally about 6-8 months), you will typically get a notification from the National Visa Center asking you to submit the immigrant visa application and pay the immigrant visa fee. You’ll need a receipt showing that you submitted this immigrant visa application in order to then submit your provisional waiver application.
- If your provisional waiver is approved (generally after about 6 months), your spouse’s visa interview at the U.S. consulate will be scheduled, and your spouse will need to travel to his or her home country to attend the interview.
If, however, your spouse has entered the United States illegally more than once, has entered illegally after having been deported, or has entered illegally after having been in the United States without legal status for more than a year, he or she is likely subject to a permanent lifetime bar to entering the United States. Click here for more information on the consequences of illegal entry.
If you are a green card holder and your spouse is undocumented
Spouses of U.S. green card holders must have a current legal immigration status in order to apply for a green card from inside the United States.
Whether or not they entered the country legally, the marriage-based green card application process for undocumented spouses of U.S. green card holders is similar to the process for spouses of U.S. citizens who entered the United States illegally (see above). However, there are two key differences:
- The process takes longer for spouses of green card holders, because they have to wait for a visa to become available. It takes approximately 18 months longer before they are able to apply for an immigrant visa with the National Visa Center, which they must do before applying for a waiver.
- Until recently, spouses of green card holders were not able to get waivers if they were subject to the three- or ten-year reentry bars due to unlawful presence in the United States. It’s important to make sure that you get accurate, up-to-date information about whether or not your spouse would qualify for a waiver in this situation.
How does DACA affect my spouse’s eligibility for a marriage-based green card?
The ways that DACA (Deferred Action for Childhood Arrivals) affects eligibility for a marriage green card are subtle, but could make a huge difference in individual cases—especially if the DACA recipient spouse arrived in the United States illegally and/or the sponsoring spouse is a U.S. green card holder.
First of all, “unlawful presence” doesn’t accrue until a person turns 18. If your spouse applied for DACA before turning 18, or within 180 days of turning 18, then generally he or she will not be subject to reentry bar (and therefore will not need a waiver) if he or she has to apply for a green card from outside the United States.
Just as importantly, many DACA recipients have been able to travel outside of the United States and return legally with a travel document, also called “Advance Parole.” If your spouse is currently a DACA recipient and last entered the United States with his or her travel document, he or she should be able to apply for a marriage-based green card from inside the United States.
Otherwise, DACA should have no special effect on whether or not your undocumented spouse qualifies for a marriage-based green card.