New York Lawyer's Legal Updates

Marriage to a US Citizen

Author: US Citizenship lawyer Alena Shautsova

Marriage to a U.S. citizen is one of the ways for a non-U.S. citizen to gain the right to live and work permanently in the U.S.

Adjustment Of Status Video

Quite often, however, a person who decides to marry a U.S. citizen has already been in the country "illegally" for a prolonged period of time. Is it possible for such a person to successfully apply for a green card? The answer depends on several factors.

First, as of today, a person can adjust his or her status to one of a permanent resident (receive a green card) while in the U.S. if such a person entered the country legally: that is had a valid visa at the time of the entry, was inspected and admitted or paroled to the United States. However, as a general rule, if a person came to the U.S. under visa waiver program, or as a foreign national crewman, or came to the U.S. as a transit territory and stayed, such a person generally is not eligible to receive a permanent resident status without leaving the U.S. An exception to this restriction may apply under "grandfathering" provision of 8 C.F.R. 245.10.

Second, a person can adjust his or her status if he/she is not "inadmissible" under Section 212 of INA. In some cases, depending on the ground of inadmissibility, a waiver can cure this problem. If an individual is eligible for permanent residence, but not eligible for adjustment of status, that person might still obtain permanent residence by leaving the U.S. and completing the process for an immigrant visa at a U.S. consulate abroad. However, if such a person had been unlawfully present in the U.S. for more than 180 days, he or she would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years if unlawful presence is more than one year. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars.

It is important to remember that unauthorized employment, unlawful status or failure to maintain status are not bars for adjustment of status for those who marry a U.S. citizen.