Marrying an Improperly Documented Alien

On behalf of Mark E. Jacobs at Mark E. Jacobs, P.C.

Change in the law

Before 2013, if you were a U.S. citizen married to an improperly documented alien, your spouse would have to leave the country and face harsh penalties before they were able to obtain their legal papers. A policy change that took place on March 4, 2013, however, allows hundreds of thousands of such undocumented immigrants to have an easier road to legal status.

An undocumented immigrant married to a U.S. citizen may now apply for a special provisional waiver from within the United States; this new process avoids leaving the country to file and face a 10-year ban from returning to the U.S. Under the former law, the ban was a punishment for those who lived in the U.S. illegally for more than a year.

The new policy requires applicants who do not have criminal records and who have only violated immigration laws to show that leaving the country for an extended period of time would create an "extreme hardship" for their legal spouse. Some examples of such hardships might be, having to cope with a major illness, or caring for a special-needs child. According to CBS News, the federal government received about 23,000 hardship applications in 2011, more than 70 percent of which were approved. Also, applicants still have to first prove that they are in a legitimate marriage.

If the waiver is provisionally approved, the applicant is allowed to return to their native country to go through a green-card interview process, before coming back to the U.S. to wait for weeks-not years-for final waiver approval. Once that waiver is approved, they can apply to the State Department for a visa.

A personal story

The above are the facts. How, though do these facts affect people personally? Here is one story, as reported in The Arizona Republic.

Xochitl Hernandez came to this country illegally 14 years ago and now lives in Scottsdale, Arizona. "This is really good news for me," said Hernandez. "I no longer will have to worry about going outside the country and being separated from my babies."

Xochitl Hernandez and her husband, Richard, met when they both worked as cooks at a restaurant. He was born in this country, making him a U.S. citizen. Nine years ago Xochitl and Richard married. Hernandez has commented that she feels she has a fair chance to qualify under the exception because her two minor daughters were both born in the U.S., making them citizens. Xochitl's oldest daughter was born with a turned-in foot, limiting her ability to walk and requiring special care, including weekly therapy.

Before the change in the law, Xochitl thought it was better to remain in the country illegally rather than being separated from her family for at least one year.

Conclusion

If you are an undocumented immigrant married to a U.S. citizen, or vice-versa, and you have hesitated over the years pursuing legal status out of fear of being physically separated from your family for a long period of time, and out of fear that a waiver to stay in this country would ultimately not be granted, now may be the time to contact an experience immigration attorney and explore your current legal options. The road to citizenship may be easier than you think.