When Can Asylee Get Green Card for New, Undocumented Spouse?

If the marriage happens after you gain asylum status, you face a long and uncertain procedure to attempt to gain lawful immigration status for an undocumented spouse.

By , J.D., LL.M.

After being granted asylum in the U.S., it's possible that you might meet and decide to marry someone who lives in this country. But what if your fiancé arrived in the United States unlawfully—for example, walked across the border from Mexico? Would your marriage allow you to get status for your new, undocumented spouse?

Only Preexisting Marriages Can Be Automatically Included in an Asylum Grant

In some situations, it is possible to include a spouse in your asylum grant, although this does not appear to help in your situation, as we'll describe.

The law says that any spouse or child under 21 who is physically in the United States at the time of the asylum adjudication can be added to the asylum application as a dependent and will be granted asylum if the principal applicant is granted asylum. However, in order to list a spouse as a dependent, the legal relationship must have existed before the grant of asylum. If you married your fiancé only after you received asylum, and your fiancé was not physically in the United States when you won your case, that person cannot obtain asylee status from your claim.

Waiting Until You're a Lawful Permanent Resident to Petition for an Immigrant Spouse

As an asylee, you are allowed to apply for and obtain a green card one year after the grant of asylum. (That process in itself can take several months.) Once you receive your green card, you can file a petition for alien relative for your spouse (See Preparing an I-130 Visa Petition for the Immigrating Spouse of a U.S. Permanent Resident.)

It is important to realize, though, that approval of an I-130 petition will not, by itself, get a spouse a green card. Your spouse would next have to wait until his or her Priority Date is current (which can take several years by itself), then file an application for permanent residence. (See articles discussing the Application Process for a Green Card Based on Marriage.

If your spouse is undocumented, however, it seems unlikely that he or she will be able to adjust status within the United States. Only a few categories of people can use the adjustment of status procedure instead of applying for their green card using the procedure known as "consular processing," which involves an interview at the U.S. embassy or consulate in the immigrant's home country.

Importantly, people who have been in unlawful status in the U.S. for six or more months may, upon leaving the U.S. for any reason (including the required consular interview), be barred from reentering the United States for three or ten years. The amount of time a person is barred from reentering the U.S. depends on whether the unlawful stay was between six months and one year or greater than one year. For more information, see Living in the U.S. and Married to a U.S. Permanent Resident: What are the Immigration Options?

It is always a good idea to consult with an experienced immigration attorney to help figure out the best course of action.

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