Can You Marry an Undocumented Immigrant? Legal Steps and Challenges
Marriage can bring hope and promise, even when immigration status is uncertain. Uniting personal and legal considerations may feel overwhelming.
Wogwu Law, PLLC, extends caring service to immigrants across the nation, guided by both professional insights and personal immigration journeys. This article discusses what happens when you want to marry an undocumented immigrant, the legal steps involved, and various obstacles that might arise.
The Basics: Marrying an Undocumented Immigrant
Marrying an undocumented individual is permitted under federal law, as there is no statute banning such a union. Yet, it is important to remember that just being married to a U.S. citizen does not instantly provide legal status. Gaining lawful status often depends on the immigrant’s entry records and the specifics of the U.S. citizen spouse’s situation.
Some couples assume that marriage always leads to quick approval for a green card, but this is not automatic. Marriage can pave the way to submit applications for lawful status, but outcomes depend on past immigration activities and available eligibility categories.
You should know that the immigration process might vary if the immigrant entered without inspection or overstayed a visa. These different entry methods often affect the pathway to permanent residence, so it is wise to learn more about them before filing applications.
Defining “Undocumented”: Entry and Presence
The term “undocumented immigrant” refers to any individual who did not secure permission to enter the U.S. or who has overstayed a lawful visa. Both scenarios place that person in unlawful presence. While some individuals cross the border without inspection, others arrive on valid visas but remain after their authorized period expires.
“Lawful entry” means an immigration officer officially admitted or paroled the individual at a port of entry. Without that inspection and admission, an immigrant’s entry is deemed unlawful. Overstaying a visa typically starts lawful but becomes unlawful once the visa expires or the permitted stay ends. Either way, the person is considered undocumented if there is no valid immigration status.
Unlawful presence is often linked with possible time bars upon leaving the U.S. If you depart the country after accruing a specific period in unlawful presence, you might trigger a re-entry penalty (commonly three or ten years) that prevents your reentry. These bars may be waived in certain situations, though it usually requires rigorous documentation.
Pathways to Legal Status Through Marriage
Marriage to a U.S. citizen can lead to a green card, but the path largely depends on how the undocumented immigrant arrived in the United States. Two main strategies are available: Adjustment of Status and Consular Processing.
Adjustment of Status: Requirements and Process
Adjustment of Status involves filing for permanent residence from inside the U.S. This option is open to some spouses who have had a lawful entry, such as entering with a valid visa. In that scenario, the immigrant may remain in the country while their marriage-based forms are processed.
Couples typically file:
- I-130 (Petition for Alien Relative)
- I-485 (Application to Register Permanent Residence or Adjust Status)
- I-864 (Affidavit of Support)
Individuals can also submit Form I-765 to request a work permit and Form I-131 to apply for a travel document while the green card application is pending. However, a person who entered the U.S. without inspection might not qualify for Adjustment of Status unless they meet certain exceptions.
Consular Processing: When It’s Necessary
Consular Processing is generally necessary when someone is not qualified to adjust status in the U.S. This path requires the immigrant to attend an interview abroad at a U.S. consulate. It may apply if the individual entered without inspection or has past violations that bar Adjustment of Status.
If the immigrant spent a significant period in unlawful presence, departing the U.S. could trigger the 3-year or 10-year entry bars. These bars come from the Immigration and Nationality Act, section 212(a)(9)(B)(i)(I) and (II). Yet, some people pursue an I-601A provisional waiver beforehand, which, if approved, can clear their unlawful presence penalties before they leave.
Keep in mind that the I-601A waiver solely targets unlawful presence. If there are other ineligibility factors, an additional I-601 waiver might be needed. Advance planning can help avoid unexpected delays in this process.
Specific Scenarios and Considerations
Many couples have unique issues that call for extra time and care. Understanding these details now can prevent missteps later.
Marriage to a DACA Recipient
Spouses with Deferred Action for Childhood Arrivals (DACA) can pursue permanent residence, but they may need proof of lawful entry if they want to adjust their status from inside the U.S. For instance, those who traveled on advance parole under DACA and returned with immigration inspection may be eligible to adjust their status here.
Those who entered without inspection and remained without lawful status might still need a waiver if they intend to apply abroad. Always verify eligibility for an unlawful presence waiver if time bars are an issue.
Criminal History and Inadmissibility
A criminal record can make the road to legal residence more complicated. Certain convictions might even block eligibility. It is sensible for anyone with arrests or convictions to speak with an immigration attorney before mailing forms to the government.
Honesty is important on all immigration petitions. Failing to disclose a past infraction can lead to severe consequences, including a potential denial or further inquiries.
Proving a Bona-Fide Marriage
In all marriage-based applications, couples must present evidence of a genuine marriage. The U.S. government wants to see that the relationship is not just for immigration papers.
Helpful documents may include proof of a shared residence, joint financial accounts, photos from meaningful events, records of shared trips, and statements from loved ones. A thorough set of evidence can strengthen the application.
Marriage on a Tourist Visa
Combining marriage with a tourist visa can lead to scrutiny from immigration authorities. Some officials assume you lied about your travel intent if you marry soon after arriving on a temporary visa. Before deciding, consult legal advice to avoid possible allegations of visa misuse.
Table: Common Documents for a Strong Marriage Case
| Document | Usage |
| Marriage Certificate | Proof of the legal union |
| Joint Bank Statements | Indicates shared finances |
| Lease or Mortgage Documents | Shows cohabitation |
| Photos and Travel Itineraries | Reflect shared experiences |
| Affidavits from Acquaintances | Verify genuine relationship |
Steps to Take if Considering Marriage to an Undocumented Immigrant
Before moving ahead, couples may want to create a plan that addresses the immigrant’s history and possible barriers. Being systematic is helpful when gathering documentation.
- Identify how the immigrant entered the U.S. or if their visa has expired.
- Check for any unlawful presence that could trigger re-entry bars.
- Review criminal and immigration records to see if waivers may be required.
- Gather proof of a sincere and active marriage.
Written records and a strong timeline of the couple’s relationship often help demonstrate honest intentions to U.S. Citizenship and Immigration Services (USCIS).
Seeking Legal Guidance: Why It’s Essential
Immigration policies can be confusing for those trying to marry across status lines. Even minor errors on forms can result in requests for more proof or untimely denials. With such high stakes, it is usually wise to get legal input from an attorney who focuses on immigration.
Lawyers can recommend whether consular processing or Adjustment of Status is feasible. They can also advise you on waivers for unlawful presence and other barriers if required. Because each case unfolds differently, it pays to have a trustworthy resource for steps and forms.
Representation during any formal appointments or communications with the government can also provide peace of mind. Legal professionals can help respond to notices efficiently and ensure deadlines are met.
Considering Marriage to an Immigrant? Contact Wogwu Law, PLLC Today
Wogwu Law is committed to supporting immigrants seeking a safe and secure future. The firm helps individuals apply for family-based visas and handles complicated status issues. If you wish to learn more, call 210-972-4480 or visit our contact page to schedule a consultation. We understand your hopes for family unity and look forward to assisting you with a caring approach that values your goals.