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Under present law, a person who came to this country with a visa can attain permanent residence
Under present law, a person who came to this country with a visa can attain permanent residence if he or she marries a US citizen.

Can an Immigrant Get Legal Status
If they are Married to a U.S. Citizen?

The anti-Mexican bias in our immigration laws is one
of the government’s best-kept secrets 

Jan 23, 2019
by Christopher Kerosky, Kerosky, Purves & Bogue, LLP, Sonoma County Human Rights Commissioner

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You may think it is self-evident that an immigrant who marries a U.S. citizen can get their green card (permanent residence) and stay in this country.  Most Americans I meet assume this is the case.  The truth is quite different.

The laws are a bit complicated but here’s a basic introduction:

  • Immigrants who came to the U.S. legally.  Under present law, a person who came to this country with a tourist visa or other visa can “adjust their status” to a permanent resident if he or she marries a US citizen.   Likewise, if the immigrant came on a visa waiver because they are from a country (like Canada and most European nations) whose citizens are not required to have a visa by the U.S. government.  This Adjustment of Status procedure takes place in the U.S. and is described in more detail below.

  • Even visa overstays are eligible. That is true even if the immigrant stayed here illegally long after their visa ended and worked here illegally.

  • K-1 visa or Fiancee visa.  If the person came to the US on a fiancée  visa, however, they must marry within 90 days in order to qualify for adjustment of status to permanent residence.  If they don’t marry, they must return to their home country.

  • Immigrants who enter without a visa.  Generally speaking, persons who come across the border without a visa – even as a child—cannot get permanent residence in the U.S. through marriage.  They must obtain a pardon of their “inadmissibility” and apply for their status outside the U.S. at a consulate in their home country.
      
  • Those who came illegally twice are barred.  Most who crossed the U.S. border illegally more than once are ineligible entirely, even if their spouse and children are U.S. citizens.  This is a common impediment for Mexican immigrants who have lived here a long time, but returned to Mexico for an illness or death in the family or just to visit their relatives back home.  They are covered by a punitive U.S. law known as “the permanent bar” and usually have no way to legalize at all.
     

Adjustment of Status procedure

If one is eligible to proceed to apply for a green card in the U.S., here’s how it works: 

The immigrant must submit an application package, with many immigration forms and supporting documents including photos, birth and marriage records and financial records.  There must be a medical exam.

One of the requirements is a financial sponsor with adequate income to support the immigrant. Usually that is the U.S. citizen spouse but it can be another relative.   

It generally takes only 12-18 months to finish the adjustment of status process.  There is an interview at the end of the application process, which both spouses must attend.  These interviews generally last approximately one hour or less and are intended to determine whether the marriage is legitimate or not.  

If there is any significant doubt about whether the marriage is real, the applicants are required to come for a second, more intensive interview.  In these second interviews, the spouses are separated and questioned at greater length by trained officers.  

If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the permanent residence application is approved.  After 3 years, the immigrant is eligible for U.S. citizenship.

Pardon Procedure for the Undocumented

For those who came across the border illegally, there is a long and often difficult procedure which culminates in a required trip to a U.S. Consulate in their home country.  Before they go, they need to obtain a “pardon of inadmissibility”.  To qualify for the pardon, they must convince the immigration service that their U.S. citizen spouse or parent will suffer "extreme hardship" if the immigrant is forced to return to their country of origin.  Notably, having one or more US citizen children does not make one eligible for the I601A pardon.  Why is this? When the U.S. Congress passed this law in 1997, it apparently wanted to prevent an immigrant from deriving any benefit from having what some call “an anchor baby” here.

Immigration laws favor those from Europe and other developed countries 

The immigration rules for married immigrants – like most of our immigration laws – benefit those who come from wealthy countries.  They either don’t need a visa to visit the U.S. or have fewer problems getting one than most Mexicans and Central Americans.

For example, a European who comes as an adult on his own volition and spends 10 years here illegally working and living can marry and get a green card without leaving the U.S. and without a pardon.  

Conversely a Mexican citizen who came as an infant with his parents and spent his or her whole life here and then marries a US citizen must seek a discretionary pardon and faces deportation if the pardon is denied.  This is true of most young people here with DACA.  If the application for the pardon is rejected, the immigrant is denied status here and could be subject to deportation.  

And if the DACA recipient was brought in as a child twice by their parents, they are subject to a “permanent bar” and have no path to a green card.

How fair is that?

This is in addition to green card processes that take over 20 years for most Mexicans getting a green card through other family members – waiting periods that are more than twice as long as those for citizens of all other countries in the world.

The anti-Mexican bias in our immigration laws is one of the government’s best-kept secrets — rarely discussed in the media, in Congress or by this Administration.  If we want to address the problem of illegal immigration at our Southern border, there should also be real immigration reform of these laws biased against our Southern neighbors.  

 

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