While you were in the United States, you met the woman or man of your dreams. The thought of now having to part ways may feel devastating. Will you be allowed to stay if you get married?

Fortunately, United States immigration laws prioritize keeping families of U.S. citizens together. The good news is that as the spouse of a U.S. citizen, you may be able to obtain a green card, even if you are currently here unlawfully. The downside is that the process is more complex.

Your options and potential for success depend upon whether you entered the country legally. If you came here on a visa but overstayed, you have a greater chance of success than if you entered illegally.

Overstays

As an overstay without complicating factors, such as an arrest record, you have a good chance of winning approval of your green card application. The process is basically the same as if you were in the country legally. You and your U.S. citizen spouse file form I-130 Petition for an Alien Relative and form I-485, Petition to Adjust Status in the same application package. You can also file form I-765, Application for Employment Authorization so you can work while your application is pending.

However, once the application is filed, you shouldn’t leave the United States until your green card is approved. You may leave without incident, but you may get stopped at the border when you try to reenter the country. You should consult with an attorney if you have questions about your right to travel without jeopardizing your green card application.

Illegal Entry

The green card application process is much more complicated and risky for an undocumented immigrant. Your application cannot be processed in the United States. However, you are subject to the 3 and 10-year bar if you leave. Under this rule, you are barred from coming back to the United States for three years if you were here illegally for more than six months and barred for 10 years if you were here illegally for more than one year.

Before you leave, you have to file a form I-601A Application for Provisional Unlawful Presence Waiver along with evidence that denial of the waiver and visa will cause your U.S. citizen relative to suffer extreme hardship. If you aren’t eligible to file for the provisional waiver, you must file form I-601 Application for Waiver of Grounds of Inadmissibility at the consulate that is considering your visa application.

If denied a waiver, you will be stuck outside of the United States with little recourse to reenter until your bar has expired. Therefore, you should discuss your case with a qualified immigration attorney who can advise you of your risks and help you mitigate those risks.

*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.