It’s a frightening time for immigrants. Although previous presidents have deported immigrants in large numbers, many – especially those without criminal records – felt a relative sense of normalcy. But with an administration that is outwardly hostile toward immigrant populations, any comfort previously felt is gone. As Donald Trump attempts to tighten immigration laws and cut down on even legal forms of migration into the United States, it can be difficult to keep up with the changing landscape.
That’s why we have launched the Ask an Immigration Lawyer column. Twice a month, Nubia Willman – a Chicago-based immigration attorney with nearly decade of experience – answers your questions about Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), and more. This column is not meant to be construed as legal advice. You should not act upon any information provided without seeking the advice of an attorney licensed to practice law in your state.
Dear Nubia: I want to get married to my partner who has a perfect background record. What paperwork does he need to get married in the United States if he is undocumented? Is applying for a waiver safe? Or is he more at risk to be deported in the process?
–Worried in Wisconsin
Dear Worried: Love and marriage should be simple, but as we now know, when it comes to anything related to immigration, it’s anything but simple. Of course, one can get married with or without lawful status in the U.S., but obviously you want to ensure your spouse then gets to stay and build a life with you here. In general, when a U.S. citizen applies for an immigration benefit for their spouse, the spouse is eligible to “adjust status” (meaning apply for residency). In some instances, the spouse can adjust their status in the country and not have to leave. In many other circumstances, like when the undocumented spouse did not enter with inspection, they may need to return to their country to “consular process.” The idea is that you return to your country for an interview and are then admitted back into the U.S.
However, people living in the U.S. without permission are accruing unlawful presence. If they accumulate more than six months of unlawful presence, they trigger a bar to reentry when they leave the country. So, you can see how someone may be eligible to apply for an immigration benefit through their spouse, but opts to not go forward with it because they don’t want to risk getting stranded outside of the U.S.
As mentioned, there are some waivers available to help alleviate this risk. The 601A waiver, known as the state-side waiver, asks USCIS to waive their unlawful presence. This is a discretionary application, there are fees, there’s no guarantee it will be approved, and the applicant has to show various factors, including hardship to the U.S. citizen spouse. Because it is not an easy waiver to obtain, it’s important that one visit an attorney to assess your personal circumstances to determine whether you will be eligible for the waiver.
Best of luck.
Disclaimer: The information on this column is not legal advice. Legal information is not the same as legal advice, which is the application of law to an individual’s specific circumstances. The information provided in this column is not a substitute for and does not replace the advice or representation of a licensed attorney. Although Remezcla goes to great lengths to make sure the information on the column is accurate and up to date, we make no claim as to the accuracy of this information and are not responsible for any consequences that may result from the use of this column.
We recommend that you consult with a licensed attorney if you want assurance that the information on the Remezcla and your interpretation of it are appropriate for your particular situation. You should not and are not authorized to rely on this column as a source of legal advice. The use of this column does not create an attorney-client relationship between Remezcla, its agents, and any user.