Marriage to a U.S. Citizen

Marriage to a U.S. citizen is often considered to be the fastest and surest way of obtaining lawful permanent residence (green card) in the U.S. But utilization of this method is not always so straightforward as the process will depend upon how the foreign spouse entered the U.S. If the foreign spouse entered with a visa they are considered to have been inspected and admitted. The same is true if they are paroled into the U.S., except for certain types of parole. Such foreign spouses will most likely be eligible to adjust or change their status to that of a lawful permanent resident while in the U.S.

Visa Overstay

Even if your spouse has overstayed the visa that they used to enter the U.S., they are still most likely to be eligible to adjust their status from within the U.S. In other words, they don’t have to leave the country. Because they were inspected, admitted, or paroled and are now married to a U.S. citizen, the law allows for any time out of status or any unauthorized employment to be forgiven.

Entry Without Inspection

If your spouse did not present themselves at a designated port of entry for inspection and admission, they are considered to have entered without inspection (EWI). In most cases, this means that they cannot adjust or change their status from within the U.S. Normally, they will need to Consular Process and will need a waiver of inadmissibility if they remained in the U.S. for more than 180 days without a lawful status.

Section 245(i)

One exception to Consular Processing for persons who entered EWI is Section 245(i) of the Immigration and Nationality Act. This is a section of the law that Congress enacted temporarily, with the last enactment ending on April 30, 2001. If you can show that you were named on an I-130, I-140, I-526 or a Labor Certification Application on or before April 30, 2001, you can adjust your status from within the U.S. by paying a $1,000 fine.

Removal of Conditions

If at the time that you become a permanent resident, you have been married for less than two years, you will be granted status with conditions. The condition is that you file a petition to remove the conditions within the 90 days before the second anniversary of being granted permanent residence. Normally, this is a joint petition with your spouse, but there are waivers available in the case of your spouse’s death, extreme hardship, or abuse.

Spouse and Minor Sons and Daughters of a Lawful Permanent Resident

Sons and Daughters of a U.S. Citizen

  • Minors
  • Adults

Brothers and Sisters of a U.S. Citizen

This category can take ten or more years before your sibling can finally obtain lawful permanent residence. But I have seen some siblings utilize such petitions when Congress re-authorizes Section 245(i). It is unclear when Congress may again authorize Section 245(i), so every benefit under this section should be viewed as a long-term or tentative strategy.