Can I Apply for a Green Card if I Entered Without a Visa But Married a U.S. Citizen?
If you entered the U.S. without a visa and later married a U.S. citizen, you may be wondering if you are eligible to apply for a Green Card. The short answer is yes, it’s possible. However, it’s not always a straightforward process. In this article, we’ll explain how you can apply for a Green Card through marriage, even if you entered the U.S. unlawfully, and explore the various legal processes and requirements.
The Process of Adjustment of Status 
When someone enters the U.S. without a visa, they generally have fewer options for applying for a Green Card. However, one of the best pathways for someone who entered the U.S. unlawfully but is married to a U.S. citizen is through the Adjustment of Status (AOS) process. Adjustment of Status allows someone who is already in the U.S. to apply for a Green Card without having to leave the country. It’s often the preferred option for individuals who have entered without a visa.
To apply for AOS, your U.S. citizen spouse must file a Petition for Alien Relative (Form I-130). This petition establishes your marriage and your relationship to a U.S. citizen. Once that petition is approved, you can apply for AOS through Form I-485. During this process, you will need to provide extensive documentation to demonstrate your eligibility and to prove that your marriage is legitimate.
What Happens if You Entered the U.S. Without a Visa?
Entering the U.S. without a visa, also known as an unlawful entry, complicates the Green Card application process. Generally, individuals who enter the U.S. without a visa cannot adjust their status or apply for a Green Card. However, if you marry a U.S. citizen, you may have an opportunity to apply for a Green Card through a process called parole in place (PIP). PIP is an exception to the rule, allowing certain undocumented individuals to adjust their status without leaving the U.S.
There are, however, potential complications with the unlawful entry. If you’ve overstayed a visa or entered the U.S. illegally, you might be subject to a bar on re-entry to the country. For individuals who have been unlawfully present in the U.S. for more than 180 days but less than one year, there is a three-year bar from re-entry if they leave the country. If you’ve been unlawfully present for more than a year, the bar extends to ten years. However, if you qualify for certain waivers, such as an I-601 waiver, you may be able to overcome these bars.
Can You Apply for a Green Card While in the U.S. Without Leaving?
Yes, you can apply for a Green Card without leaving the U.S. if you are married to a U.S. citizen, even if you entered the country unlawfully. The U.S. government allows individuals who have entered unlawfully but who are married to U.S. citizens to apply for adjustment of status. However, there are a few important points to keep in mind:
Waivers for Unlawful Presence
If you have accrued unlawful presence in the U.S., you may need to apply for a waiver to proceed with your Green Card application. The waiver is used to forgive certain violations of U.S. immigration laws, including overstaying your visa or entering without inspection.
Interview Process
Even though you may be eligible to apply for a Green Card without leaving the U.S., you and your spouse will likely be required to attend an interview. This is to ensure that your marriage is bona fide (genuine) and not entered into for immigration purposes.
Work Authorization
While your application is pending, you may be eligible to apply for work authorization. This allows you to legally work while you wait for your Green Card approval.
The Role of Your U.S. Citizen Spouse
Your U.S. citizen spouse plays a critical role in the Green Card application process. As your sponsor, they must prove that they can financially support you and that you are not likely to become a public charge (dependent on government assistance). To do this, your spouse must file an Affidavit of Support (Form I-864), which is part of the adjustment of status application.
Your spouse will also need to provide supporting documents to prove their U.S. citizenship and that you have a genuine, legitimate marriage. This includes things like joint bank account statements, proof of cohabitation, and affidavits from friends and family who can confirm your relationship.
What Happens If You Have Criminal Issues or Violations?
If you have a criminal record or have violated U.S. immigration laws in the past, your ability to apply for a Green Card can be affected. However, this does not mean you are automatically disqualified. Many people with criminal records or immigration violations can still apply for a Green Card, depending on the nature of the offense. For example:
Criminal Convictions
Certain criminal convictions can make you inadmissible to the U.S. and prevent you from obtaining a Green Card. However, if the conviction is for a minor offense or if it occurred long ago, it might be possible to apply for a waiver.
Overstays or Unlawful Presence
As mentioned earlier, if you overstayed your visa or entered the U.S. without inspection, you may face bars on re-entry. However, you can apply for a waiver to overcome these issues and proceed with your Green Card application.
What Are the Alternatives to Adjustment of Status?
If you are not eligible for Adjustment of Status or if your application is denied, the alternative option is consular processing. Consular processing involves leaving the U.S. and applying for your Green Card at a U.S. consulate or embassy in your home country.
For those who entered unlawfully, consular processing can be complicated because leaving the U.S. may trigger a bar on re-entry if you have overstayed your visa or entered illegally. However, some individuals may be eligible to apply for a waiver before they leave the U.S., which would allow them to return to the U.S. without being subject to the re-entry ban.
The Waiver Process
The waiver process is an important step for individuals who have been unlawfully present in the U.S. for an extended period of time. If you are seeking a Green Card and have overstayed a visa or entered unlawfully, you may need to apply for a waiver to address your unlawful presence. The waiver allows the government to forgive certain immigration violations, making you eligible for a Green Card.
I-601 Waiver
This is the most common waiver for individuals who have accrued unlawful presence. The I-601 waiver asks for forgiveness based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.
I-601A Waiver
The I-601A waiver is a provisional waiver that allows individuals to apply for a waiver before they leave the U.S. to attend their consular interview. This can save time and reduce the risk of being denied entry when returning to the U.S.
While entering the U.S. without a visa complicates the process of applying for a Green Card, being married to a U.S. citizen gives you a strong path forward. The Adjustment of Status process, waivers, and the support of your U.S. citizen spouse can make it possible to obtain a Green Card without leaving the country. However, navigating the process can be complex, especially if you have prior immigration violations or criminal issues. It’s essential to consult with an experienced immigration attorney who can help guide you through the process and increase your chances of a successful outcome.
If you are facing challenges in your immigration case, contact The Scheer Immigration Law Group today. We can help you explore all your options and guide you toward a resolution.
