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

Issues such as inadmissibility and the need to await an available visa might bar an undocumented spouse from obtaining a green card through an asylee; though it's not impossible.

By , Attorney (American University Washington College of Law)

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, made their way across the border from Mexico? Would your marriage allow you to get lawful immigration 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 help in the situation described here. 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 for yourself one year after the grant of asylum. (That application and approval process in itself can take several months.) Once you receive your U.S. 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 could have to wait for a current Priority Date (which typically takes from two to five years), then file an application for U.S. residence. (See articles discussing the Application Process for a Green Card Based on Marriage.

If your spouse is undocumented, however, it seems unlikely that they 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 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? A waiver of the unlawful presence ground of inadmissibility is possible, but only if you can show hardship to close U.S. relations.

Getting Legal Help

It is always a good idea to consult with an experienced immigration attorney to help figure out the best course of action, prepare the forms, and draft convincing arguments and documents to support the application.

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