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Can I apply for a green card based on marriage?

One of the most common questions that immigrants ask is: will I be able to apply for my green card through my marriage to my U.S. citizen or permanent resident husband or wife?  The question is often more complicated than it would seem.  The answer will depend on the category that you fall into, as well as the specific circumstances in your case.  Generally speaking:

  • If you entered the U.S. legally on a visa, even if you overstayed the visa, you usually can apply for residency if married to a U.S. citizen (not permanent resident).  There are some visa categories that do not allow you to do this, such as the J1 visa subject to the two-year residency requirement, or certain crewman’s visas.  Those do have a waiver process, but it is a very rigorous one.  If you entered on a fraudulent visa, you will require a waiver and will have to show extreme hardship to your U.S. citizen spouse or parents (if they are either U.S. citizens or Legal Permanent Residents).
  • If you entered the U.S. illegally, you cannot benefit from a marriage unless you qualify for the 245(i) exception.  This was essentially a pardon that was granted if you physically present in the U.S. on December 21, 2000, had a qualifying family member petition for you before April 30, 2001, and paid a $1,000 penalty in addition to the regular adjustment of status fees.  Unfortunately, many undocumented immigrants who are married to U.S. citizen and permanent resident spouses are left in limbo, waiting for another 245(i) exception to come along to allow them to apply for their green card.  The only other alternative is consular processing, which requires you to leave the U.S. and usually subjects you to an unlawful presence bar.  In most cases, the person cannot return to the U.S. for ten years without a waiver that is only granted in extreme cases.  However, if you have Temporary Protected Status, even after being in the country illegally for years, you can apply for your green card based on marriage to a U.S. citizen if you are issued an advance parole document and are legally paroled into the U.S., as long as you apply for a waiver for the time that you spent in the U.S. unlawfully. 
  •  If you are married to a legal permanent resident, and do not qualify for a 245(i) exception, you are still forced to go through consular processing and cannot apply for your green card inside the U.S.  Usually, people in these situations simply wait for their husband or wife to naturalize and become U.S. citizens so they can apply.
  • If you are an immigrant living outside the U.S., or you are a U.S. citizen or permanent resident whose spouse or fiance is living abroad, you can either file a family petition for your spouse or apply for a K1 fiance visa.  The waiting times depend on your immigration status and your spouse’s country of origin.
  • If you married to a U.S. citizen or legal permanent resident spouse, and are involved in an abusive situation, seek help for domestic violence immediately and move out of the abusive environment.  Many immigrants feel trapped in an abusive marriage because they believe that if they don’t stay, they will not be able to obtain their green card without their spouse’s cooperation.  If you entered into the marriage out of love or another legitimate reason (not to gain immigration benefits), and you are being abused, you are protected by the Violence against Women Act (“VAWA”), which applies to both men and women.  This law was passed to deal with this unjust situation, and to allow victims to escape the abuse and apply for their green card on their own.  There are battered shelters and hotlines providing free help and advice to victims.
  • If you were married to a U.S. citizen who died, you can apply for your green card within two years of your spouse’s death as long as you have not remarried.  If your spouse filed an immediate family petition before his or her death, that will convert into an I-360, “Widow(er)” Petition which will allow you to continue with the process.

This is a very basic overview of the eligibility categories.  Determining whether you are ultimately eligible for your green card is a much more complex process, and requires a thorough analysis of your immigration history, criminal record, and circumstances of your marriage.  It is extremely important that you consult with an immigration lawyer, because if you file an application for a green card (Form I-485) that is denied, you may be placed in removal proceedings.  If you are already in removal proceedings, you should consult with a lawyer to ensure that you know your options.  Removal proceedings are a more complex process with much more severe consequences.

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