A Common Misunderstanding
Perhaps you are among many others in California who mistakenly believed that by marrying a U.S. citizen, you’d automatically become one yourself. By the time you learned that the information was not factual, you may have already found yourself in a precarious situation. Do you remain undocumented and hope for the best? It’s been duly noted that not only is this illegal, it’s typically a very bad idea for many other reasons as well.
However, those who say mixed-status families should simply do what needs done to adjust the legal status of the undocumented spouse may not realize it’s often easier said than done. U.S. immigration law is quite complex, for one thing. Unless you have a background in law, it’s usually difficult to understand. There may also be a language barrier involved. Becoming a citizen is a process, one that is often lengthy and stressful. Thus, you may be tempted (as others have been) to live an undocumented lifestyle instead.
Facts About Marriage, Immigration, and Legal Status
In order to make informed decisions, you may want to learn as much as possible about U.S. immigration law as it pertains to marrying an undocumented immigrant. Below is a short list of facts that may provide clarification on some of the issues that concern you most:
- If you are a non-citizen spouse of a U.S. citizen, you are likely already aware that you are at risk for deportation at any time. There’s no shortage of stories about people getting pulled over in traffic stops or called into their bosses’ offices at work, and the next thing they know, they’re being led away to detention centers to await removal hearings.
- Married or unmarried, if you want to become a naturalized citizen of the United States, there’s a process, there are fees, and there are laws that you must meet.
- Cost and time cause many people in your situation to procrastinate when it comes to filing legitimate applications for citizenship. In fact, some remain in an undocumented status for decades.
- Your documented spouse may sponsor you for a green card application, provided you entered the country legally. If not, your spouse may still sponsor you, but you’ll have to return to your country of origin and begin the process from the start.
- If you live in the United States for more than a year without legitimate legal status, and you leave the country for any reason, the government automatically prohibits you from re-entry for 10 full years.
- If your spouse can prove that a separation of any amount of time would place undue hardship upon him or her and the rest of your family, you may qualify for a hardship waiver.
- Although you may feel overwhelmed and worried at times, wondering what to do to rectify your situation of living as an undocumented spouse of a U.S. citizen, there are generally several options available. It may help to talk to other immigrants who have successfully adjusted their statuses. Many California immigrants also choose to reach out for guidance from experienced immigration advocates.
Hopefully, everything will work out, and in addition to your wedding ceremony, you will one day enjoy celebrating your status as a naturalized citizen. In the meantime, an immigration law attorney can try to help you overcome any obstacles that arise.
What Does It Mean to Be Undocumented?
In U.S. immigration law, the word “undocumented” is complex. It can mean:
- You entered the U.S. without inspection (EWI)
- You overstayed your visa
- You violated the terms of your entry (e.g., working without authorization)
Your path to legalization depends heavily on how you entered and whether you are eligible for adjustment of status or must go through consular processing.
Two Paths to Legal Residency Through Marriage
1. Adjustment of Status (AOS)
Available if you entered the U.S. legally.
You may apply for a green card without leaving the country.
Required forms:
- Form I-130 (filed by your spouse)
- Form I-485 (adjustment application)
- Form I-765 (work permit)
- Form I-131 (travel permit)
2. Consular Processing with a Waiver
Required if you entered illegally.
You’ll have to:
- Leave the U.S.
- Apply at a U.S. consulate abroad
- File Form I-601A (Provisional Unlawful Presence Waiver)
- Return after your waiver and visa are approved
Common Immigration Forms
| FORM | PURPOSE |
|---|---|
| I-130 | Petition for Alien Relative |
| I-485 | Adjustment of Status |
| I-765 | Employment Authorization Document (EAD) |
| I-131 | Advance Parole (travel) |
| I-601A | Provisional Waiver of Unlawful Presence |
| I-212 | Permission to reapply after removal |
| I-864 | Financial sponsorship (Affidavit of Support) |
| I-751 | Removal of conditions (2-year green card) |
What Is a Hardship Waiver?
If you must leave the U.S. for your interview, you may face a 10-year reentry bar if you’ve been unlawfully present for over a year. However, you can apply for a waiver (I-601A) by proving your U.S. citizen spouse would face extreme hardship if you were denied reentry.
Examples include:
- Medical condition
- Financial instability
- Emotional trauma
- Educational disruption for children
Timeline and Fees
| STEP | TIME | FEE |
|---|---|---|
| I-130 | 8–12 months | $535 |
| I-485 | 8–14 months | $1,225 |
| I-601A | 12–18 months | $930 + $85 biometric fee |
| I-765 / I-131 | 3–6 months | Free if filed with I-485 |
| I-751 | 12–24 months | $680 |
Real-Life Scenarios
Maria: Entered legally, overstayed visa, married a U.S. citizen. Adjusted status in the U.S.
Jorge: Entered illegally, married a U.S. citizen. Needed I-601A waiver and consular processing.
What If You’re Denied?
Common causes of denial:
- Lack of evidence of a real marriage
- Financial ineligibility
- Inconsistent interview answers
- Criminal history
- Public charge concerns
Always consult a qualified immigration attorney before reapplying.
Frequently Asked Questions (FAQs)
Can I stay in the U.S. while applying?
Yes, if you entered legally and are eligible for adjustment of status.
What if I entered without inspection?
You may still apply, but you’ll likely need to return to your home country and get a waiver (I-601A).
Can I work while waiting for my green card?
Yes, by filing Form I-765 along with your AOS application.
What is Advance Parole?
Form I-131 allows you to travel outside the U.S. while your AOS is pending.
What happens after I get my green card?
If you’ve been married for under 2 years, you’ll get a conditional green card and need to file Form I-751 to remove the conditions.
Your Next Step: Contact a Trusted Immigration Attorney
Immigration law is complex, and your family’s future is too important to risk mistakes.
At Hussain & Gutierrez Law, we help undocumented spouses:
- Adjust status
- Apply for hardship waivers
- Navigate consular processing
- Fight removal or denials
- Remove conditions on a green card
Schedule your consultation now
www.hussaingutierrezlaw.com
Final Thoughts
Hopefully, everything will work out, and in addition to your wedding ceremony, you will one day enjoy celebrating your status as a naturalized citizen. In the meantime, an immigration law attorney can try to help you overcome any obstacles that arise.
