Introduction to Assisting an Undocumented Immigrant Spouse in Obtaining a Green Card

As an American citizen married to an undocumented immigrant, the journey towards obtaining a green card can be fraught with challenges. Understanding the legal processes involved and the various paths available is crucial in supporting your spouse. Whether the undocumented status is due to overstaying or entering illegally, several options are available. This article will provide guidance on how to navigate the path towards citizenship for your spouse.

1. Adjusting Status if the Spouse Entered Legally but Overstayed

If your spouse entered the United States legally but overstayed their visa and has never left, they might be eligible for a green card through Adjustment of Status (AOS). After marriage to a U.S. citizen, the spouse can apply for a green card while remaining in the United States. The process is straightforward for those in the Immediate Relative category, including spouses, unmarried children under 21, and parents of U.S. citizens.

Key points:

No need to be in status for Immediate Relative category. No special waiver or process is required. No unlawful presence ban applies if they have never left the U.S.

2. Consular Processing if the Spouse Entered Illegally

If your spouse entered the United States illegally, obtaining a green card becomes more complex. In such cases, the Consular Processing pathway is typically required. This process involves the spouse leaving the U.S. to attend the interview at a U.S. consulate or embassy abroad.

Important factors to consider:

180 days of unlawful presence: Leaving the U.S. after accruing more than 180 days of unlawful presence can trigger a three-year ban. 1 year of unlawful presence: Leaving the U.S. after accruing one year of unlawful presence can trigger a ten-year ban. Applying for an Immigrant Waiver: An immigrant waiver might be available if the U.S. citizen spouse can show "extreme hardship" to their union if they cannot be in the U.S. However, this is a challenging requirement to meet.

3. Exception: Parole-in-Place for Illegally Entered Spouses

A unique exception applies to spouses who entered the U.S. illegally but were married to the U.S. citizen as of June 17, 2024, and were physically present in the U.S. from June 17, 2014, to June 17, 2024. They can apply for Parole-in-Place using form I-131F. Although this option cannot be approved currently due to an injunction, applications are still being accepted. If the injunction is lifted and the application is approved, this status can be akin to legal entry, allowing the spouse to apply for Adjustment of Status without leaving the U.S.

Steps if eligible:

Fill out and submit form I-131F for Parole-in-Place. Receive approval to avoid triggering a ban or needing a waiver.

Key Takeaways and Guidance

Assisting an undocumented immigrant spouse in obtaining a green card requires a thorough understanding of the immigration processes and legal requirements. Whether pursuing Adjustment of Status or Consular Processing, every step must be carefully planned to avoid complications. If faced with illegal entry, seeking legal advice is highly recommended to explore the best possible options.

Conclusion

Supporting your undocumented immigrant spouse in obtaining a green card is a complex but achievable process. By understanding the legal paths and potential complications, you can better support your spouse in moving forward towards permanent residency. Whether through Adjustment of Status, Consular Processing, or Parole-in-Place, every step is crucial in realizing the dream of citizenship for your loved one.