Can I Get a Marriage-Based Green Card After Entering Without Inspection?

One of the most common misconceptions about immigration law is that marrying a U.S. citizen automatically allows someone to obtain a green card.

Unfortunately, it is not always that simple.

If you entered the United States without being inspected by an immigration officer—sometimes referred to as entering "without inspection" or "EWI"—marriage to a U.S. citizen may provide a path toward permanent residence, but the process can be significantly more complicated.

Whether you can obtain a green card, and whether you can complete the process without leaving the United States, depends on your individual immigration history.

Why Does the Way I Entered the United States Matter when considering a green card after entering without inspection?

Many spouses of U.S. citizens are eligible to apply for permanent residence through a process called adjustment of status.

Adjustment of status allows an eligible person who is already in the United States to apply for a green card without leaving the country to attend an immigrant visa interview.

However, as a general rule, adjustment of status requires the applicant to have been inspected and admitted or paroled into the United States.

This creates a problem for many people who crossed the border without being inspected by an immigration officer.

Even if you have now been living in the United States for many years, are married to a U.S. citizen, have U.S. citizen children, pay taxes, and have no criminal record, the manner in which you originally entered the country can affect whether you are eligible to apply for your green card from inside the United States.

Does Marriage to a U.S. Citizen Fix an Entry Without Inspection?

Not by itself.

Marriage to a U.S. citizen can provide the underlying family relationship necessary for immigration, but it does not automatically cure an entry without inspection.

For example, some immigration violations—such as certain periods of unauthorized employment or overstaying an authorized period of stay—may be forgiven for an immediate relative of a U.S. citizen who is otherwise eligible to adjust status.

An entry without inspection is different.

For many people seeking a green card after entering without inspection, the normal process involves having the U.S. citizen spouse file an I-130 family petition, followed eventually by immigrant visa processing through a U.S. Embassy or Consulate outside the United States.

But leaving the United States can create another serious immigration problem.

The Unlawful Presence Problem

Someone who entered without inspection and remained in the United States may have accumulated unlawful presence.

Depending on the amount of unlawful presence accumulated, departing the United States can trigger a three-year or ten-year bar to returning.

This is why someone who entered without inspection should not simply leave the United States for a consular interview without first obtaining legal advice about the consequences of departure.

In some cases, the person may qualify for a provisional unlawful presence waiver, commonly called an I-601A waiver, before leaving the United States.

What Is an I-601A Provisional Waiver?

An I-601A provisional waiver allows certain immigrant visa applicants to ask USCIS to waive the unlawful-presence ground of inadmissibility before they depart the United States for their immigrant visa interview.

To obtain the waiver, the applicant generally must demonstrate that refusing admission would result in extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent.

This is an important distinction: U.S. citizen children are not themselves qualifying relatives for purposes of the I-601A extreme-hardship requirement. However, hardship to children can sometimes be relevant to the extent that it causes or contributes to hardship suffered by a qualifying spouse or parent.

If the waiver is approved, the applicant must still leave the United States and attend the immigrant visa interview abroad.

An approved I-601A waiver does not guarantee that the immigrant visa will be issued. It addresses unlawful presence, not every possible ground of inadmissibility.

That is one reason a careful review of the person's entire immigration and personal history is extremely important before beginning this process.

Are There Ways to Get a Green Card Without Leaving the United States?

Sometimes.

There are important exceptions that may allow certain people who entered without inspection to adjust status in the United States.

Section 245(i)

Some people may be "grandfathered" under a provision of immigration law commonly called Section 245(i).

Section 245(i) can allow certain individuals who would otherwise be unable to adjust status—including some people who entered without inspection—to apply for permanent residence from within the United States after paying an additional penalty fee.

Eligibility generally depends on having been the beneficiary of a qualifying immigrant petition or labor certification filed on or before April 30, 2001. In some circumstances, a person may qualify through a petition filed for a parent or spouse rather than one filed directly for that person.

Because these cases depend heavily on old immigration filings and family relationships, it is important to investigate whether any petitions were filed for you or members of your family many years ago.

Parole in Place for Certain Military Families

Certain family members of current or former members of the U.S. military may qualify for parole in place.

For an eligible person, a grant of parole in place may make it possible to satisfy the inspected-and-paroled requirement for adjustment of status and potentially apply for permanent residence without leaving the United States.

Military families should therefore have their eligibility evaluated before assuming that consular processing is necessary.

Other Immigration History May Matter

There are other situations in which a person's immigration history can significantly change the analysis.

For example, prior entries into the United States, prior departures, previous immigration petitions, removal or deportation proceedings, prior removal orders, encounters with immigration officials, and previous applications for immigration benefits may all affect the options available.

What If I Have Left and Reentered the United States?

Your complete history of entries and departures is extremely important.

A person may face what is commonly called the permanent bar if, after accumulating more than one year of unlawful presence in the United States, the person leaves and then enters or attempts to reenter the United States without being admitted.

Importantly, this does not necessarily require more than one entry without inspection.

For example, someone might originally enter the United States legally with a visitor visa, remain in the United States long enough to accumulate more than one year of unlawful presence, leave the country, and later return without inspection. That later entry without inspection may trigger the permanent bar even though it was the person's only entry without inspection.

Similarly, periods of unlawful presence from different stays in the United States may sometimes be added together when determining whether the person accumulated more than one year of unlawful presence before the later unlawful entry or attempted entry.

The dates matter. The permanent-bar provisions generally apply to relevant unlawful presence and entries or attempted entries occurring on or after April 1, 1997. There are also important rules and exceptions governing when unlawful presence accrues.

Because the consequences can be severe, anyone who has had more than one entry into the United States—or who entered legally, overstayed, departed, and later returned without inspection—should have their complete immigration history carefully reviewed before filing an application or leaving the United States for an immigrant visa interview.

What If I Have Been in the United States for 10 or 20 Years?

Living in the United States for a long time does not, by itself, create eligibility for a green card.

There is a common misconception that a person automatically becomes eligible for permanent residence after living in the United States for ten years. There is no general "10-year green card" rule.

There is a form of relief known as cancellation of removal that includes a ten-year physical-presence requirement, but it is available only in removal proceedings and has several additional requirements. It should not be confused with obtaining a green card simply because someone has lived in the United States for ten years.

Should My U.S. Citizen Spouse File an I-130 for Me?

Possibly, but filing an I-130 is only one part of the analysis.

Approval of an I-130 establishes the qualifying family relationship. It does not necessarily mean that the beneficiary is eligible to adjust status in the United States or that an immigrant visa can safely be obtained abroad.

Before filing, it is often helpful to understand the entire strategy:

• How did you enter the United States?

• Have you ever left after your original entry?

• Have you ever been stopped or detained by immigration officials?

• Have you ever been ordered removed or deported?

• Has anyone ever filed an immigration petition for you, your parents, or your spouse?

• Do you have any criminal history?

• Have you ever given false information or documents to an immigration official?

• Have you ever claimed to be a U.S. citizen?

These facts can dramatically change the available options.

Don't Assume That Marriage Makes Everything Automatic

Marriage to a U.S. citizen can create an important path toward permanent residence, even for someone who originally entered the United States without inspection.

But marriage does not erase every immigration violation.

For some people, the appropriate strategy may involve an I-130 petition, an I-601A provisional waiver, and consular processing. Others may qualify to adjust status inside the United States through Section 245(i), parole in place, or another provision of immigration law. Still others may have additional immigration issues that must be addressed before leaving the United States.

The most important step is determining which path applies before taking an action that cannot easily be undone—especially departing the United States.

If you entered the United States without inspection and are now married to a U.S. citizen, an immigration attorney can review your complete immigration history and determine whether you may have a path to permanent residence and whether that process can be completed inside the United States.

This article provides general information about U.S. immigration law and is not legal advice. Immigration cases are highly fact-specific, and laws, policies, and procedures may change.