I'm here illegally but marrying an American, how this will affect my chances of being made legal?
By: Debbie McGoldrick | Published Thursday, June 17, 2010, 6:55 PM | Updated Friday, September 9, 2011, 9:34 PM
“Please do not print my name or location. I am from Ireland
and have lived in the U.S.
for eight years without a visa. I traveled home three years ago for a funeral, tried to return and was denied entry. I was told that I would be barred from returning to the U.S. for 10 years because I was living here illegally, which is true. I couldn’t bear the thought of staying in Ireland, so I traveled to Canada
and made it over the border.
“I’ve been here ever since, and I’m in a serious relationship with a great American woman. We are going to get married and I’m hopeful that this will lead to me eventually becoming an American citizen, my dream for so long. But I’m petrified about the fact that I’m not actually supposed to be here, and how this will affect my chances for getting legal. What do you suggest I do?”
WHILE it is true that marrying an American citizen can provide a faster track to legal status and eventual U.S. citizenship, the road is going to be much bumpier for you because of your circumstances.
Those who marry American citizens while in the U.S. are eligible to undergo a process called adjustment of status. This can be done at a U.S. Citizenship and Immigration Service (USCIS)
office within the U.S., and provided all regulations are satisfied, permanent status can be achieved relatively quickly (within a year or so) compared to other immigration categories.
The adjustment rules require the couple to prove the marriage was entered into for the purpose of spending a lifetime together as opposed to getting a quick green card -- and that the foreign spouse entered the U.S. after inspection by a U.S. immigration officer.
Given your background, the process is going to be far more difficult. “In order to be eligible, the alien must have been inspected and admitted or paroled,” Section 245 of the Immigration and Nationality Act says.
(There used to be a section of law known as 245(i) that allowed those who entered without inspection to be eligible for adjustment processing here by paying a $1,000 fee, but that provision expired in 2001.)
Therefore, if you marry and move forward with an application for permanent resident status, you would have to leave the U.S. and be processed in Ireland. This could take years, and there’s no guarantee of success because you’ve already been issued a 10-year ban from returning here.
It would be possible for you and your intended wife to apply for a waiver of the remaining time on the ban, but such waivers are only granted if it can be proved that the U.S. citizen spouse would suffer extreme hardship as a result of the separation. Such waivers are very difficult to come by.
Needless to say, it is imperative that you consult with a skilled U.S. immigration attorney before you do anything at all. Cases such as yours are extremely complex and cannot possibly be undertaken without the best legal assistance possible.
Another few words about 245(i) – the provision proved extremely popular for the few years that it was in existence because it allowed undocumented aliens as a whole to legalize their status within the U.S., provided that the opportunity was available and that they were otherwise eligible. There were major lobbying efforts undertaken at the time of expiration to renew 245(i), but those efforts were not successful.
Perhaps it’s time for Congress to look at re-implementing 245(i)? It was far from an “amnesty,” as some critics alleged, because the alien had to have either an employment or family sponsor, and the government received $1,000 for each 245(i) processed. Undoubtedly that money – perhaps even at an increased charge – could be put to good use in these days of recession and budget problems.