Obtaining a green card in the United States is taking a big step. The process can be quite frightening for those unfamiliar with the immigration process. There are a variety of ways to obtain a green card in the United States, however, a common means of obtaining a green card is through marriage. In order to obtain a green card through marriage, the non-citizen will have to apply for adjustment of status, which simply means that the non-citizen’s status will be adjusted from being a visa-holder to being a lawful permanent resident.
Oftentimes, the non-citizen seeking to become a lawful permanent resident can remain in the United States during the adjustment of status application process. However, there are certain situations where the non-citizen may need leave the United States and apply for a green card based on marriage from his or her home country.
When You Can Stay in the United States
If the non-citizen spouse entered the United States legally (even if he or she overstayed the visa period), then the non-citizen can likely stay in the United States during the adjustment of status application process. The non-citizen immigrant spouse is deemed to have entered the United States legally if he or she entered the United States in one of the following ways:
- Entry with a visa, such as a temporary work visa, a student visa, or a tourist visa;
- Entry under the Visa Waiver Program – in such cases, the non-citizen spouse can enter the United States without obtaining a visa first, and can simply present his or her passport when entering the United States as a tourist; and
- Entry with a border crossing card
These are not the only ways in which the non-citizen immigrant spouse can enter the United States, however, these are the more common ways. While most non-citizen spouses will be able to stay in the United States during the adjustment of status process, it is still important to consult with an experienced immigration attorney to evaluate your particular circumstances. Your case may require special steps that other cases do not require.
When You May Need to Leave the United States
If the non-citizen entered the United States illegally, meaning without inspection, he or she may be required to leave the United States and apply for consular processing based on marriage from his or her home country. When the non-citizen spouse leaves the United States to return to his or her own country, he or she will have to apply for an immigrant visa and a green card through the consular process at the United States consulate in the non-citizen’s home country.
There is no guarantee that an application will be approved, as each application is reviewed on an individual case-by-case basis, and no two cases are alike. The government authorities at the consulate have the discretion to deny the non-citizen an immigrant visa, and consider the non-citizen spouse to be inadmissible to the United States for a previous illegal entry. Consular authorities will consider various factors that help them decide whether or not to approve a visa application, and the amount of time a non-citizen spouse was living in the United States illegally is a significant factor.
A non-citizen may be able to obtain a I-601 waiver in order to waive the inadmissibility status if he or she can prove that the United States citizen spouse will suffer extreme hardship if the non-citizen spouse is not able to obtain an immigrant visa in order to enter the United States legally. As is the case with the visa application process, immigration authorities have the discretion to approve or deny the application for a waiver. If you or your spouse wishes to re-enter the United States after being required to leave following the marriage, it is essential that you speak with an immigration attorney who can advise you as to the proper steps you should take to seek adjustment of status based on marriage.
Contact the Immigration Attorneys of Geygan & Geygan, Ltd. Today to Schedule a Free Consultation
If you or your loved one is seeking to establish permanent residency in the United States based on marriage, it is imperative that you speak with an experienced immigration attorney right away. The process for seeking permanent resident or “green card” status could be different depending upon your individual circumstances. The seasoned immigration attorneys of Geygan & Geygan, Ltd. provide their clients with superior legal services to help them achieve their goals of lawfully living in the United States. Contact Geygan & Geygan, Ltd. today at (513) 791-1673 to schedule a free consultation or for a free report click here.