Marrying an Illegal Alien: Getting a Green Card Based on Marriage to a United States Citizen

Filing immigration papers for your husband or wife can be a frightening experience, especially if they are here illegally. There is a great deal of misinformation about this process: when to do it, whether to do it, where and what to file. This article briefly addresses some of the questions that come up when a U.S. Citizen files for an illegal. However, it is very important in any case to get good legal advice before filing. If the case is filed without getting good legal advice, it could result in deportation of the foreign national.

The first issue to consider in filing for your husband or wife is whether to file at all. People with criminal convictions (aside from traffic violations) or with deportation/removal orders need to see an immigration attorney immediately to determine whether to file. Also, as discussed below, people whose original entrance into the country was illegal should also consult with an attorney before filing. One issue that comes up frequently is whether you can file a petition for a person here illegally. The answer is maybe. Part of the answer depend on if the person originally entered legally or whether they entered legally and their visa has now expired. Each of these situations is addressed below.


Filing for Someone on an Expired Visa.

If the person entered legally on a visa which is now expired, in most cases a petition may be filed and processed in the United States – it doesn’t matter that the visa may have expired many years ago. The fact that the visa expired does not, in and of itself, bar the person from successfully processing for a green card. Additionally, the fact that the foreign national may have worked illegally without authorization is not an obstacle to them getting their green card. The process involves filing a group of forms and supporting documents such as birth certificates, marriage certificates and tax returns. The immigrant must also pass a special immigration medical examination. The United States Citizen must also show that they are financially able to support the immigrant.

Once the paperwork is filed ,the immigrant gets a work card within a short time. Some time thereafter, the citizen and the immigrant are called for an interview at which an immigration officer determines whether the marriage is “real” or was just entered into to get a green card. Assuming the person passes the interview, they soon receive a “green card” and a few years later may apply to become a naturalized United States Citizen.

 

Filing for Someone Who Entered Illegally, i.e., Without a Visa

A. Processing the Petition in the United States

If someone’s original entrance into the United States was illegal, the only way they can process in the United States is if they are covered by a law called section 245(i). Section 245(i) allows people who came illegally to adjust their status in the United States as long as they pay the government a penalty fee, currently $1000. The sections covers people who filed any type of immigration petition on or before April 30, 2001. Even if the petition was denied, the person may still be covered under section 245(i) and can process in the United States through a different petition filed by their current husband/wife. Here are two examples where 245(i) might apply: (1) Brother files a petition for sister on or before April 30, 2001. It takes 12 years for that petition to be processed. In the meantime, the sister marries a United States Citizen. A U.S. Citizen husband can file a petition for the sister right away and she would be allowed to process in the US under section 245(i); (2) Employer files a petition for Mr. Jones. At the time, Jones’ daughter is under 21. The employer later goes bankrupt. Both Jones and his daughter are still eligible to immigrate under section 245(i) through a petition filed by a United States Citizen husband or wife and can process their cases in the United States.

Section 245(i) is very broad and can cover may people, sparing them inconvenience, cost and issues with processing at an embassy or consulate. It is very important to assess whether someone may be covered by this important law before filing.

B. Processing the Petition at an Embassy or Consulate

The last scenario involves cases where the person entered illegally and is not covered under section 245(i). In that situation, the person’s husband/wife must file a petition and once that petition is approved, the immigrant will have to leave the United States for a visa interview in their home country. If they have been here illegally for more than 180 days, they then will be charged with being “unlawfully present”. However, the government may pardon or “waive” this charge if the immigrant can show that they have a spouse, parent or child that would suffer extreme and unusual hardship. Extreme and unusual hardship is very difficult to prove. The mere fact that one would be separated from their husband or wife, standing alone, is not sufficient. The government looks at medical hardship, psychological hardship, financial hardship, and other factors when deciding to grant a waiver/pardon. Not all cases and granted and many are denied. Also, it can take some months before a waiver/pardon is decided and the immigrant must wait in their home country until a decision is made. It is important to have your case assessed by our office before even beginning the immigration process.

In conclusion, filing a petition for someone here illegally can be done but it can be a complicated process. People often think that once they are married to a Citizen it’s an easy process but that’s not always the case. The most important thing is to assess the case in the beginning to see if there are any problems. To avoid pitfalls, contact our office for advice and help at 310-384-0200.


Robert A. Perkins has been practicing immigration law for twenty (20) years and has also taught the subject as an adjunct professor at University of Illinois law school. Perkins, who is known nationally as “The Immigration Professor”, has appeared on numerous television shows, radio programs as a guest and speaker on various immigration topics. He currently lives in Los Angeles, California with his wife and two kids. Mr. Perkins is admitted to the Illinois and United States Supreme Courts.

ii. There are some cases where even someone who entered legally may not process in the United States, for example, if they originally entered on a crewman’s visa. For more information about this, please contact our office at 310-384-0200 for a consultation.

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About Robert Perkins
Robert A. Perkins | Attorney at Law Robert A. Perkins is the sole partner and founder of Robert A. Perkins & Associates, PC. Since the establishment of the firm in 1994, Mr. Perkins' focus has been in Employment and Family Based Immigration. Mr. Perkins has represented many companies and individuals within the United States and abroad. His experience and knowledge of immigration have made him a nationally renowned attorney in his field. Immigration Attorney Robert A. Perkins is licensed and admitted in the State of Illinois and the US Supreme Court.

Comments

22 Responses to “Marrying an Illegal Alien: Getting a Green Card Based on Marriage to a United States Citizen”
  1. Dorian says:

    We just got our interview and were given a document “Adjudicative Review”. We are married for real, I would never risk committing fraud, or anything like that. The interviewer didn’t as a single question related to us. The only question he did ask, was “what is the date of your divorce to your 1st wife”. This was in 1993! Why would he ask such an irrelevant question?

    We live with roommates, so we have witness all over the place.

    Any advice would be appreciated.

    Thanks, Dorian

  2. Hello Dorian: Sorry to reply so late. You are in a tough position. I think your case needs an aggressive attorney to go in with as much evidence as possible and speak with a supervisor to push the case. It can take FOREVER for them to decide cases when this happends and the best advice I have is to be aggressive.

  3. Dorian says:

    Thanks for the reply.

    We just made an appointment and will take additional evidence.

    We can also tell them that they are welcomed to stay at our house for a week.

    Crazy Government!

  4. Roberta says:

    Hi my name is Roberta I’m 22 years old living in Boston. I would like to know if you take cases related to immigration from here.
    Thanks

  5. Hello Roberta: If you like we can direct you to our referring attorney in that area. Best, The Professor.

  6. faraz khan says:

    dear sir,
    My girl friend is US citizen and i m asian . we meet through internet. we want to marry . she will visit my country and then we will marry , so plz tell me, the US embessy will let me to go with her to her country after our marraige?. i m not US citizen.

  7. Dallas says:

    Hi Robert my scenario is that my fiance was brought to the united states as a child of 8 years. She is now 20 and we are going to get married soon. Can she be penalized for that? and what’s the first step to take after marriage?

  8. vickesha says:

    My question is I just got married and now my husband is telling me I have to give my past tax returns
    Before we where together is this true

  9. Eve says:

    Hi, I am marrying a man who is in the process of receiving his green card. We don’t know when he’ll be getting it, but I would like to know if us marrying would affect or interrupt the process of him receiving his green card. If so then we’d have to set off our marriage until after he receives it, which we hope is not long from now. Thank you for your time and I hope to hear from you soon.

  10. Amanda Martinez says:

    I know this post is a tad old, but do you have a referring attorney in the Austin Texas area? My boyfriend is illegal from Mexico, and has been here since he was 3 (he’s now 20). Is there any hope for a marriage or citizenship? He is already applying to deferred action and it is pending.

    Any advice helps.

    Thanks

  11. Christian Gonzalez says:

    Theres a special girl for everyone I fell in love with mine. She told me before hand she was illegal and my research has been unsuccessful. It shows that sense brought here by her mother and never applied before our chances are hard? Im currently in the process of entering the US Air Force. Will this affect me if I marry her and apply for her citizenship with her? I want this girl to be in my life forever and it means alot to her to be legal so I wanna make it happen! Can I be helped?

  12. I AM A DISABLED VIET NAM VETERAN I MARRIED MY WIFE A MEXICAN NATIONAL WHO ENTERED THE US ILLEGALLY 1 YEAR AND 7 MONTHS AGO I HAVE MARRIED BEEN SEVEN MONTHS–HOW CAN I GET HER A GREEN CARD–I NEED MY WIFE WITH ME IN AUSTIN TX– SHE IS IN BROWNSVILLE WITH HER TWO TEENAGE DAUGHTERS– BUT SHE CAN NOT CROOS THE BORDER INSPECTION CHECK POINT OUTSIDE HARLINGEN TEXAS TO COME NORTH WITH ME– I AM A 100% DISABLED VETERAN 512 902 1228— SERVED IN US NAVY 1972-1974. I HAVE PTSD AND IN RECIEPT OF COMPENSATION—-

  13. You might qualify for some waivers/pardons. If you would like to schedule a consultation, please call us at (888) 439-4560 to discuss this matter. Thank you.

  14. Maria Vasquez says:

    Hi, my name is Maria and I am officially engaged and my fiancé is not a legal resident. So I have been discussing trying to fix his legal status because I don’t want to live in fear wondering when he can be taken away. He has applied for the employment application in Oct.12, 2012 he met all the criteria for the deferred action and has not been approved. If I were to marry him would the whole process become easier? Or what can I do?

  15. Sally says:

    I want to know what I can do to report someone who married a family member in order to get that person a green card.

  16. Hello Maria:

    Sorry to reply so late. Has your husband’s deferred action been approved? Either way, it would be good for you to apply for him for
    a green card. Please call our office for help, 888-439-4560.

  17. I’d be happy to help Christian. Call our offices at 888-439-4560. Sorry for the late reply.

  18. Hello Richard:

    Sorry to reply so late. Our office could help your wife wby filing a marriage petition and she may also need a waiver (like a pardon) of her unlawful presence. Please contact us at 888-439-456 for further assistance.

  19. Dallas: Sorry for delay replying. Hope to be better at replying to posts on my site going forward. We should be able to help your finance although she may something
    called a waiver (like a pardon) due to being out of status. To determine this I would need more information about her history. Please call our offices
    at 888-439-4560 to set up a consultation.

  20. She will need to file a marriage petition. Processing time is about 9 months to 1 year. If you (or she) needs help with this call our offices
    at 888-439-4560.

  21. nick says:

    My girlfriend came to the u.s legally but overstayed her visa…I want to marry her soon but if I do,please how long do I have to wait before she can apply for a green card…I am a U.S citizen…please reply..its urgent..thnk you

  22. Hello Nick: There is no wait to file. Please call our offices nationwide at 888-439-4560. Best, Robert

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