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There are several marriage based green card options for persons already in the US depending
upon marriage either to US citizen or legal permanent resident and depending upon whether
entered the US legally or illegally.
You entered legally if you were inspected by an officer of the US border patrol at the
border or port of entry such as an airport, seaport, or bus station.
People normally enter the US legally using:
Even if you are now illegal in the US (staying past the date of authorized stay, in other
words, out of status), if you entered the US legally, the consequences are different.
Anyone who entered the US without first being inspected by an officer of the US border patrol
is considered to have entered the US illegally.
Usual ways of entering the US illegally are getting into the trunk of someone's car, hide in the
truck when it is crossing the border, sneak into the border at an unguarded point on the US border etc.
Technically, it is called "Entry Without Inspection" or "EWI".
If you have come to the US illegally more than once, spent a total of 1 year or more during your previous
visits, and/or were deported at the end of a visit, you may be permanently barred from immigrating
to the US. Consult an immigration attorney before proceeding any further.
There are several options:
-
Get married and immediately apply for 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 other 2 mentioned below, if you have overstayed 6 months or more
since April 1, 1997. If you leave US, you would be barred from returning for 3 or 10 years, depending
upon the length of unauthorized stay.
- Entered illegally
Aliens who entered the US illegally are usually not eligible to file for Adjustment of Status.
However, you may be eligible to adjust the status in the US 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 US 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 US.
If you fall into this category, get married in US and immediately apply for 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 US 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 US before you have stayed illegally by 6 months or more and apply at
a US 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, US 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 US, 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 US before you have stayed illegally by 6 months or more, get married outside
the US 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 US 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 US 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 US to apply for consular processing or K3 visa, collect and keep all evidence of
your visits to US and departure from US, such as air tickets, boarding passes, store receipts, medical records,
credit card statements, and anything else relevant.
Don't leave the US if you or your children have overstayed 6 months or more, at any time since Apr 1, 1997.
You could be barred from reentering the US for
3 (overstay of 6 months or more but less than 1 year) or 10 (overstay of 1 year or more) years.
There are several options:
- Fiance visa is NOT an option. It is available only to the fiances of US citizens living outside
the US.
- Wait until your fiance becomes a US citizen, then explore the options described above under
'Marriage to US Citizen'.
- Get married in the US. However, due to annual quotas and long waiting list in
F2 category, you will not be
able to apply for Adjustment of Status for several years until the priority date becomes current.
Until then, you will not be able to legally live in the US 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 US legally, you have never been out of status, you have never worked
illegally in the US, and your priority date is current, you can file the application for
Adjustment of Status in the US.
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 US on student visa or temporary work visa, not
tourist visa that is usually for 6 months with one possible of 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 reentering) and go through
consular processing.
- Stay in the US illegally, hoping to do Adjustment of Status in the US when the priority date
is current. However, you can be deported at any time.
If you entered the US illegally, most likely you would not be allowed to adjust the status in the US.
If your spouse becomes US citizen, you can adjust the status as described above in 'Marriage to US citizen'.
You may be eligible to adjust the status in the US 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 US 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 US.
- Leave the US before you have stayed illegally for 6 months or more, wait until priority
date becomes current, and go through for Consular Processing.
- Leave the US 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 3-year or 10 years 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 US 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.
If you leave the US to apply for consular processing, collect and keep all evidence of
your visits to US and departure from US, such as air tickets, boarding passes, store receipts, medical records,
credit card statements, and anything else relevant.
Spouse of US citizen is considered
immediate relative
and there is no priority date, annual quota or big waiting period.
On the other hand, spouse of permanent resident is considered
preference category
F2A category that has
annual quota and waiting period of several years.
However, it is not advisable to wait until the spouse is US citizen to file the petition
for green card. It is better to get started as soon as possible when the petitioner
has green card, and if the petitioner becomes US 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 US citizen. Moreover, if the naturalization process is delayed because of some reasons,
it will add extra time before you begin the process.
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