After receiving a U visa, can I get my new spouse a U visa, too?

The spouse of a U visa applicant may, even if the marriage occurred after U visa approval, be able to apply for a green card with the U visa holder.

Question

My U visa was approved a year ago, and I just got married a month ago, to someone who is in the U.S. without papers. Can my spouse get a U visa, too? He needs to fix his immigration status.

Answer

The spouse of a U visa holder can’t get a U visa in the traditional way, as a derivative (who obtains benefits through the primary applicant). All is not lost, however, so keep reading.

In order for your spouse to have gotten a U visa with you, as a derivative, you would both have had to have been married to each other at the time that you applied for the U visa. According to the facts you've set forward, you got married after you applied for your U visa, such that your spouse does not qualify as your derivative.

Here is the better news – if and when you apply for lawful permanent residence (a green card), your husband also has a chance to apply.

After three years in the United States in U nonimmigrant status, a person can apply to adjust status -- that is, to become a lawful permanent resident and get a green card. This doesn’t work for everyone; there are a few more requirements, as explained in Nolo’s article, “Will a U Visa Ever Lead to a Green Card?”.

Assuming that you are eligible for a green card, your husband should be, too. A spouse is considered a “family member” for immigration purposes, and USCIS may grant a green card to the spouse of a U visa applicant if: “(1) the qualifying family member [your husband] was never admitted to the United States in U nonimmigrant status, and (2) it is established that either the family member or the U-1 principal applicant would suffer extreme hardship if the qualifying family member is not allowed to remain in or be admitted to the United States.”

To use this benefit, you would need to file for your own adjustment of status application using USCIS Form I-485, as explained in “Applying for a Green Card From U Status.”

Then, either at the same time as or after you file your Form I-485, you Would file Form I-929, “Petition for Qualifying Family Member of a U-1 Nonimmigrant” for your spouse, along with the other required evidence and the filing fee (or an application for a fee waiver). The other required evidence varies, but in a marriage-based case it will include a copy of your marriage certificate, a signed statement by you explaining why USCIS should be favorable in applying its discretion to your husband’s case, and any other evidence you can provide to establish that either you or your husband would suffer extreme hardship if your spouse were not allowed to remain in the United States.

The Form I-929 for your husband cannot be approved until after your own adjustment application is approved. After you receive the approval of the Form I-929, your husband will need to submit the approval notice along with his application to adjust status. (If your spouse were living abroad, he would need to apply through a different process and using a different set of forms; this process is known as "consular processing.")

U-visa based adjustment applicants are not subject to the same admissibility requirements that most other adjustment applicants are – so, when your husband files his application for adjustment of status, the common grounds of inadmissibility will not apply, except at USCIS’s discretion. This includes the very common situation of an applicant who entered without inspection and has accrued unlawful status.

Still, it is a good idea to consult an immigration attorney about your husband’s case, because USCIS can exercise discretion to deny cases like this, and a denial of an adjustment application often leads to the applicant being placed into removal proceedings (commonly called “deportation”).

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