As a foreign national living in the U.S. after crossing the border or otherwise gaining entry illegally, your marriage to a U.S. citizen might not, unfortunately, create a straightforward path to a U.S. green card (lawful permanent residence). It's true that spouses of U.S. citizens have a theoretical basis to apply for a green card. Nevertheless, U.S. immigration law has created various hurdles and penalties for people who either entered or stayed in the U.S. without permission.
Here, we'll explain:
The penalties you might face for unlawful entry partly depend on how many times you crossed the U.S. border without permission or inspection. Your best hope for actually receiving a green card without a wait of many years depends on whether you qualify for a waiver, based on having qualifying family members who would otherwise experience extreme hardship.
NOTE: This article does not apply to foreign nationals who entered the United States legally, such as with a visa, but then fell out of status or "overstayed." Because of your legal entry, you might be eligible to "adjust status," which would avoid the unlawful-presence inadmissibility problems described below.
As the spouse of a U.S. citizen, you are known as an "immediate relative." This is true whether you are in an opposite-sex or a same-sex marriage, provided your marriage is legally valid in the place where it happened.
Because of your immediate relative status, a green card is theoretically available as soon as you can get through the application procedures. Now, for more on the hurdles we mentioned, which could end up blocking the green card for years or forever.
You should definitely see an attorney about your hope to immigrate based on marriage to a U.S. citizen if you have entered the United States without inspection two or more times and
Such would-be immigrants might be permanently "inadmissible" to the United States. It doesn't matter that they are married to a U.S. citizen. The only thing they can do is to wait ten years since they last left the U.S. and then hope the government will allow them to apply for the opportunity to come back. See The Permanent Bar to Immigration for Certain Repeat Violators.
If you have entered the U.S. without inspection only one time, or your previous illegal entries and stays total up to less than one year, you aren't necessarily permanently inadmissible. However, some years of inadmissibility could still be a problem for you. That's because of a combination of factors.
First, unless you fall into a rare exception (discussed in When Adjustment of Status Is Possible for the Immigrant Spouse of a U.S. Citizen), you will not be allowed to apply for your green card at a USCIS office in the United States.
Second, if you leave the U.S. after living here illegally for more than six months, which you'll have to do in order to attend your visa interview at a U.S. consulate, you risk having the consulate punish you by refusing to let you return to the U.S. for three or ten years, as discussed in Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars.
To avoid being punished by the time bars, you need to act carefully and quickly. You have two options to consider:
Leaving the U.S. before you have been here unlawfully for six months and applying to an overseas U.S. consulate to return immediately with an immigrant visa is a safe option, if the timing fits your situation. Your unlawful time is short enough that you should not have a problem in being granted the immigrant visa. The visa processing could mean many months of separation from your spouse while you wait overseas, but months of separation now might be better than three or ten years of separation later.
Make sure you can prove that your unlawful U.S. stay lasted less than six months. When it's time to apply for your immigrant visa at a U.S. consulate, the officer will want to see proof of how long you stayed unlawfully in the United States. Collect and keep all evidence, such as your plane tickets, store receipts, medical records, credit card statements, and anything else relevant to show your dates of stay and departure.
If you have been in the U.S. unlawfully for more than six months (and therefore face a minimum three-year time bar on returning), apply for a waiver that will forgive your illegal stay. Under USCIS rules, you can apply for this so-called "provisional waiver" before leaving the United States, provided you have no separate grounds of inadmissibility that will also require a waiver.
Unfortunately, only certain people can gain approval of such waivers. You will need to show that, if your visa were denied, it would cause extreme hardship to your U.S. spouse (or your parents, if they happen to be U.S. citizens or permanent residents). When the law says extreme, it means far more than the sadness your spouse and/or parents will feel at your being thousands of miles away. The classic case of extreme hardship is someone whose U.S. citizen spouse has severe medical problems that require constant attention from the other spouse and render them unable to leave the U.S. with you. See Proving "Extreme Hardship" to a U.S. Relative for Immigration Purposes.
Once the waiver is approved, you can go to a U.S. consulate in your home country and apply for an immigrant visa with which to return. As soon as you enter the U.S. on that immigrant visa, you become a lawful permanent resident (green card holder).
For questions on any of this, and help with the challenging task of preparing a waiver application, consult an experienced immigration attorney. See How to Find a Good Immigration Lawyer For Your Case.