Can I apply for a Green Card through a Spouse when I failed to maintain lawful immigration status in the United States?
The ultimate answer is most likely yes, but how easy or difficult the process will depend on different circumstances surrounding your presence in the United States. Note that this article will discuss applying for a green card based on a sponsoring family member including a spouse who is either a Legal Permanent Resident or United States Citizen. There are other pathways to a Legal Permanent Resident also known as a green card that we will review in future articles.
If the beneficiary of the green card qualifies for the green card through the adjustment of status process where the final application, form I-485 is filed with the United States Citizenship and Immigration Service or USCIS, then the fact that the beneficiary was present in the United States was present without authorization will still allow the beneficiary to obtain the green card. The key is whether the beneficiary will qualify for the adjustment of status process.
The most direct path- Adjustment of Status to Legal Permanent Resident Status.
Immigration laws are designed for most green card applicants to apply for a green card through a United States consulate located in the country of nationality of the beneficiary noncitizen. As a result, qualifying for adjustment of status will require the beneficiary to meet certain eligibility criteria to be able to file through adjustment of status with USCIS from within the United States. Immigration laws will allow for adjustment of status in circumstances where the green card beneficiary is maintaining lawful immigration status at the time the I-485 application is filed with USCIS.
If the green card beneficiary has fallen out of status which can include situations where the beneficiary worked without authorization violating his immigration status, the beneficiary will either be barred from applying for the green card through adjustment of status or be required to explore whether the beneficiary can qualify for one of the exceptions permitting adjustment of status regardless of whether immigration status is maintained. If the noncitizen does not qualify for adjustment of status, then he will be required to apply for the green card through consular processing.
Exceptions to the Rule that may allow for Adjustment of Status.
Many non citizens enter the United States lawfully with a visa, but then commit an immigration law violation such as working without authorization or overstays past the period authorized to stay in the United States which causes them to lose their status. These noncitizens will likely be disqualified to apply for the green card through adjustment of status as well unless they qualify for one of the exceptions to the rule.
Exception to the Rule - Adjustment of Status pursuant to section 245(i) of the Immigration and Nationality Act.
This law will allow a green card beneficiary non citizen to apply for the green card through the adjustment of status process regardless of whether the noncitizen maintained lawful immigration status if the noncitizen had a previous immigration petition such as an I-130, I-140, I-360 or I-526 petition that was properly filed with USCIS or a labor employment certification, form ETA-750 that was filed before the Department of Labor on or before the sunset date of January 14, 1998 or before the second sunset date of April 30, 2001, where the noncitizen can prove physical presence in the United States on December 21, 2000.
If the immigrant petition or labor certification was postmarked by the corresponding sunset date, keeping in mind the requirement of physical presence based on the 2001 sunset date, the beneficiary will be allowed to file the form I-485 with USCIS where the I-485 could be based on the previously filed immigration petition or labor certification or can be based on a different immigration petition filed after the original petition was filed. There is a further requirement where an additional $1000 is required to be paid over the regular USCIS fees for the adjustment of status application to be processed under 245(i).
The bottom line is that the beneficiary meeting this requirement will be allowed to apply for the green card regardless of whether he maintained lawful immigration status. However, note that although this exception will forgive the beneficiary living in the United States without status, each case needs to be reviewed to make sure there are no other immigration or criminal law violations that can result in a denial of the green card application regardless of whether the beneficiary may be qualified for adjustment of status.
Exception to the Rule - Adjustment of Status based on a lawful admission.
The second exception where the beneficiary of a green card petition will be allowed to apply for the green card through adjustment of status is when a noncitizen was inspected and admitted by an immigration officer and into the United States and the petitioner in the case is an immediate family member. An immediate family member includes a U.S. Citizen spouse, a U.S. Citizen parent petitioning for a child younger than 21 years of age or a U.S. Citizen son or daughter 21 years or older petitioning for a parent. The legal admission combined with the specific family member will also allow for adjustment of status regardless of whether the noncitizen fell out of immigration status.
Consular Processing.
In cases where adjustment of status in not an option, these non citizens will need to look for applying for a green card through consular processing. Within the context of the case where the petitioner is a spouse whether a legal permanent resident or U.S. Citizen, consular processing will be an option even if the noncitizen worked without authorization and therefore failed to maintain lawful status in the United States. These cases will not be easy, but the spousal relationship will open a path to allow to have most immigration law violations waived. This will include bars to a green card caused by the noncitizen being present in the United States without lawful status for certain periods of time. We will discuss these violations in future articles.
Unfortunately, noncitizens that are being petitioned by an employer or a family member who is not a spouse, may face difficulties or bars that might not be able to be overcome because of the period of unlawful presence in the United States.
We can help you determine whether you can qualify for a green card through either adjustment of status or consular processing, and the steps required for each process.