Sponsoring Green Card for Undocumented Spouse

Updated on 09/22/2020

The latest immigration news may make some married couples worry about their future lives in the United States. If you are wed to an undocumented spouse, you may look at the immigration news today and become convinced that your husband or wife will never be able to get a green card. However, that is not true. Let’s figure out how you may sponsor green card for your undocumented spouse.  

Sponsor Green Card for Undocumented Spouse

Not sure if you’re eligible to apply for marriage green card? You can free check eligibility through DYgreencard without providing any personal information. Check eligibility here if married a U.S. citizen, check eligibility here if married a lawful permanent resident. When you’re ready to apply, DYgreencard can assist you in preparing a complete marriage green card application package. Learn more here if married a U.S. citizen, learn more here if married a lawful permanent resident.

1. What is meant by “undocumented immigrants”?

Undocumented immigrants mean foreign nationals don’t have a legal right to be or remain in the United States. Specifically, there are two groups of undocumented immigrants. One group is those who entered the United States legally but overstayed, including who have been “out of status” or violated their non-immigrant status due to various reasons. Another group is those who entered the United States illegally, in other words, have not been inspected at the port of entry when arriving or used fake document or identity upon entry. Which group your spouse belongs to significantly affects his or her eligibility for a marriage-based green card.

2. Can a U.S. citizen sponsor green card for spouse who entered the U.S. legally but overstayed?

The answer should be yes if the foreign spouse overstayed the country once only. The application process for such spouse’s marriage green card is the same as if he or she had legal status. Click here to learn how to apply in detail. Nevertheless, in any event, DO NOT have the foreign spouse who has overstayed for more than 180 days travel outside the United States until she or he obtained the green card.
According to Immigration and Nationality Act (INA) section 212(a)(9)(B)(i)(I) and (II),  any foreign national who has been unlawfully present in the United States for more than 180 days will trigger the 3-year inadmissible bar (10-year bar if unlawfully present for more than 1 year) upon his or her departure of the United States. (“Unlawfully present” is a terminology in immigration laws. In most situations it is equivalent to “overstayed” but not all the times. You may consult an immigration attorney if you’d like to figure it out.) As such, if a foreign national never left the United States, he or she will never trigger the inadmissible bar just because he or she overstayed the country.  Inadmissible means foreign nationals are not eligible for green card unless specified waiver is granted for such inadmissibility. Unfortunately, immigration laws set a very high demand for waiver. In practice, very few waivers can be granted.

3. Can a U.S. citizen sponsor green card for spouse who entered the U.S. illegally?

It is possible however the accurate answer really depends on foreign spouse’s specified situations.

If it is the first time that the foreign spouse entered the U.S. without any inspection at the port of entry, the foreign spouse is still eligible for marriage green card as long as he or she left the U.S. before reaching the maximum of 180 days upon his or her entry. The application process for such spouse is through Consular Processing, just as some foreign nationals would do if he or she were living abroad and applying for a marriage-based green card. Click here to learn about Consular Processing for marriage green card.
If it is the first time that the foreign spouse entered the U.S. without any inspection at the port of entry, and has overstayed the country for more than 180 days, the foreign spouse is not eligible for marriage green card unless I-601A waiver is granted. The primarily requirement of such waiver is to prove that refusal of green card to the foreign spouse will cause extreme hardship to the U.S. citizen spouse. Extreme hardship has very high evidential requirements. It is advisable to consult an immigration attorney to help you out.
If it is the first time that the foreign spouse entered the U.S. with inspection at the port of entry, but he or she used fake documents or identity upon entry, no matter how long he or she has overstayed the country, the foreign spouse is not eligible for marriage green card unless I-601 waiver is granted. I-601A waiver is also required if the foreign spouse has overstayed for more than 180 days.

If the foreign spouse reentered or tried to reenter the United States illegally after having been unlawfully present for more than 1 year in the aggregate during one or more stays in the United States, such spouse will be permanently inadmissible and no wavier is available. As a result, he or she is not eligible for green card forever.  

4. Can a lawful permanent resident sponsor green card for spouse who entered the U.S. legally but overstayed?

Again, the answer should be possible however the accurate answer really depends on foreign spouse’s specified situations.

The foreign spouse is eligible for marriage green card as long as he or she left the U.S. before reaching the maximum of 180 days of being overstayed in the U.S. The application process for such spouse is the same as foreign nationals who were living abroad and applying for a marriage-based green card through Consular Processing. Click here to learn about Consular Processing for marriage green card.

If the foreign spouse who legally entered the U.S. but has overstayed for more than 180 days, the best solution is that the lawful permanent resident becomes a U.S. citizen because a U.S. citizen may apply for green card for spouse no matter how long the foreign spouse has overstayed in the U.S.

What if the foreign spouse left the U.S. after having overstayed for more than 180 days? If it is the case, the foreign spouse would trigger the 3-year or 10 year inadmissible bar upon his or her departure. Because of inadmissibility, the foreign spouse is not eligible for green card unless I-601Awaiver is granted.  To get a waiver, you must prove that refusal of green card to the foreign spouse will cause extreme hardship to the lawful permanent resident spouse. Only few people have successes in proving extreme hardship. You’d better consult an immigration attorney to give you professional opinion.

5. Can a lawful permanent resident sponsor green card for spouse who entered the U.S. illegally?

The answer is very much similar as a U.S. citizen sponsors green card for spouse who entered the U.S. illegally. Please refer to the item 3 above.

6. How does DACA affect people’s eligibility for a marriage-based green card?

Most DACA holders initially entered the U.S. illegally. Some of them have been granted Advance Parole. They may travel outside U.S and then reenter the U.S. with the Advance Parole. Upon reentry, they are considered as “paroled”, means they entered the U.S. legally. As we described above, a U.S. citizen may sponsor green card for spouse inside the U.S. as long as the foreign spouse entered the U.S. legally no matter overstayed or not. In other words, some DACA holders may cure their former illegal entry issue by reentering with an Advance Parole and accordingly, be eligible for marriage green card.

But, keep in mind, departure will trigger 3-year or 10-year even permanent inadmissible bar if foreign nationals have been unlawfully present in the U.S. for more than 180 days. Good news is that “unlawful presence” doesn’t accrue until a person turns 18 years old. Thus, if the foreign spouse applied for DACA before turning 18, or within 180 days of turning 18, then generally he or she will not trigger 3-year or 10-year bar upon departure.

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