That isn't the end of the story, however. A waiver of the 3/10 year reentry bar can be requested. However to obtain the waiver, your United States citizen spouse will need to convince the Immigration agency that it would create an extreme hardship for him or her if you could not return before the 3 or 10 years. This will require a separate application and additional fees and the foreign national spouse would need to stay outside the United States until the waiver is approved. You can therefore see why it is highly preferable to obtain your residency by adjusting status within the United States- if you can do so.
If you can adjust your status because you can show a lawful entry into the United States, it will be a matter of filing a variety of applications, paying application fees, and if all goes well, you can expect to have your "green card" within 5 to 6 months of filing. Now of course there are other factors that can complicate your case- like criminal convictions, prior immigration violations, the affidavit of support, 245(i) eligibility, "bona fides" of the marriage etc. These, however, will need to be the subject of future articles.
I HAVE MARRIED A UNITED STATES CITIZEN, CAN I BECOME LEGAL?
So you are a foreign national and have married a United States citizen. You would now like to become a lawful permanent resident. What is involved? It depends... it depends on a number of things. First- the very good news. As the spouse of a United States citizen, you are eligible to become a lawful permanent resident without any waiting period. If your spouse were a lawful permanent resident rather than a United States citizen, though you could eventually become a lawful permanent resident, there would be a waiting period which could be as long as seven years!
The focus of this article will be the marriage of foreign national to a United States citizen in which lawful permanent residency becomes immediately available. However there can be complications- some quite substantial. Let me discuss a couple of the more significant ones. One of the key distinctions that can have a profound effect on your case will be whether you can adjust your status without leaving the United States (highly preferable!) or whether you will have to leave the United States and obtain a residency visa through the United States consulate in your native country- we call this consular processing.
NOTE- if the foreign national spouse is currently residing in the foreign country, then consular processing is the only option. Assuming, however, that you are currently residing in the United States, whether you can adjust your status (i.e. become a lawful permanent resident without leaving the United States) depends on how you entered the United States. In order to adjust your status in the United States, you must have made a lawful entry.
Even if you may have long overstayed your lawful entry and are therefore currently living illegally in the United States, if you can show you made a lawful entry, then you can adjust your status to that of a lawful permanent resident without leaving the United States. On the other hand, if you did not make a lawful entry (e.g. entered without inspection) and have therefore been living illegally in the United States from the very beginning, you still are eligible to become a lawful permanent resident because of your marriage to a United States citizen, but you must eventually leave the United States and obtain your residency visa at the United States consulate. That of course will probably be inconvenient and will likely entail considerable expense. But in addition, you may face at least one additional and significant challenge.
There is a provision of immigration law that says that once a person has lived more than six months unlawfully in the United States and then leaves the United States- and of course you will have to leave the United States to attend the interview at the consulate in your native country- then you cannot return to the United States for three years! (Ten years if unlawfully present more than one year).
