October 13, 2020

Can a Green Card Holder Sponsor a Spouse?

You are a U.S. citizen or permanent resident who has fallen in love and gotten married. But there is a catch – your spouse is undocumented. A common misconception is that it is easy to fix your spouse's status because you are a citizen or permanent resident.  

Unfortunately, the process is not always simple, but the good news is that it is possible in many cases to sponsor an undocumented spouse for a Green card! You should be prepared for an often lengthy and complicated process. How your spouse entered the U.S., how long they have been undocumented, and whether you are a citizen or permanent resident are all factors that will affect how easy or difficult it will be to sponsor them for a Green Card.

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U.S. Citizen Sponsoring the Spouse

The path will be easier for your spouse if you are a U.S. citizen rather than a permanent resident. The government prioritizes U.S. citizens' family members' unification, which can make your spouse's status somewhat easier to fix. However, it makes a difference whether your spouse entered the U.S. legally or illegally.  

Related: Fiancé Visa vs. Marriage-Based Green Card: What’s the Difference?

The Spouse Enters Legally

Your spouse would have an easier path if they entered the U.S. legally using a visa or with a visa waiver compared to those who didn't enter legally. You can sponsor them using the same process that someone who had maintained legal status would use. This will allow them to adjust their status inside the U.S. instead of processing for their Green Card at a U.S. consulate overseas. However, they should be extremely cautious about leaving the U.S. before receiving their Green Card because they might not be able to reenter while their case is pending. In such a situation, they can still receive a Green Card through consular processing, but you may face a long separation while the case is pending.

The Spouse Enters Illegally

Your spouse's situation becomes more difficult if they entered the U.S. without a visa or visa waiver. They will have to leave the U.S. and receive their Green Card through a U.S. consulate in their home country. Their situation can become even more complicated depending on how long they have been in the U.S. without documented status. If they have been illegally present for more than 180 days, they will be subject to a three-year bar on entry to the U.S. If they have been unlawfully present for more than a year, they are subject to a ten-year bar. It is possible to apply for a waiver, but such waivers also require them to prove that having to leave the U.S. would cause serious hardship for you, their U.S. citizen spouse, or their U.S citizen parents. An example of this would be the primary caregiver for a child with a severe medical condition.

Related: Getting a Green Card Through Marriage: A Complete Guide

Green Card Holder Sponsoring an Undocumented Spouse

You can sponsor your undocumented spouse for a Green Card if you have permanent residency, but the conditions are not as advantageous as they would be if you were a U.S. citizen. Your spouse will have to process for their Green Card at a U.S. consulate no matter how they entered the U.S. Their process will be very similar to that of spouses who entered illegally and are married to U.S. citizens, with a couple of key differences: 1) 

Since there is a cap on the number of visas issued per year for spouses of permanent residents, there is frequently a backlog, resulting in wait times; and 2). It is much more challenging to obtain a waiver for spouses of permanent residents compared to spouses of U.S. citizens. The process will also take longer because they cannot apply for a waiver until a visa is available.

just married

Can DACA Affect My Spouse If They Want to Get a Marriage-based Green Card?

In many situations, having DACA status will not affect your spouse's Green Card process, so they will follow the same path as any other person in the same situation, such as whether they entered the U.S. with or without a visa.

However, your spouse cannot be considered unlawfully present until they turn 18 years old. Since penalties for unlawful presence do not kick in until after 180 days, they will not be subject to penalties if they received DACA status within 180 days of turning 18. Some DACA recipients also have an Advance Parole document that allows them to travel outside the U.S. Your spouse should be able to adjust their status if they last entered the U.S. using Advance Parole.

Related: Is it Possible to Work While the Green Card Application is Pending

What are the Requirements for a Marriage-Based Green Card?

All applicants for marriage-based Green Cards must meet certain requirements regardless of their immigration status or whether the sponsor is a U.S. citizen or permanent resident. They will need to prove that you are legally married in a bona-fide (legitimate) marriage and that you did not marry only for immigration purposes. You will have to promise to support your spouse financially and that you have the means to do so. You must also be domiciled in the U.S.

There are certain situations where you might be disqualified from sponsoring your spouse, including having recently remarried under certain circumstances. Being convicted for certain offenses against minors such as kidnapping or sex crimes or USCIS believes that you present a risk to your spouse. 

Your spouse can also be disqualified for reasons such as having certain health conditions, criminal history, immigration violations, or if they believe that your spouse is unlikely to support themselves and/or require public assistance.

Frequently Asked Questions

Can a Green Card holder sponsor their spouse for a Green Card?

Yes, a Green Card holder, also known as a permanent resident, can sponsor their spouse for a Green Card. This process involves filing Form I-130, Petition for Alien Relative, to establish a valid marriage.

What are the requirements to sponsor a green card spouse?

To sponsor a spouse for a green card, the sponsoring spouse must be a U.S. citizen or a lawful permanent resident (green card holder). They must file Form I-130, Petition for Alien Relative, and provide proof of a valid marriage. 

Financial eligibility is also a requirement, demonstrating the ability to support the spouse financially in the U.S.

Related: Green Card Backlog Latest News 2023

What is the process for a Green Card holder to sponsor their spouse?

The process begins with the Green Card holder filing Form I-130, Petition for Alien Relative. Once the petition is approved, the spouse falls under the family second preference category (2A), and there is a waiting period due to the limited number of visas available each year. 

During this waiting period, the spouse seeking a Green Card should maintain valid nonimmigrant status. Once a visa number is available, the spouse can adjust their status with Form I-485 if they already live in the United States.

What if the spouse is undocumented?

If the spouse is undocumented, the process can be more complex. It's crucial to consult with an immigration attorney to understand the potential risks and challenges. 

In some cases, the undocumented spouse may be eligible for a provisional waiver, which allows them to leave the U.S., attend an immigrant visa interview, and return legally.

Navigating the complexities of sponsoring an undocumented spouse for a Green Card can be challenging. Still, with the expert guidance of Brudner Law, the process can be made more manageable and transparent.

What documents are required for the process?

You must submit Form I-130 with all required documentation, including: 

  • A copy of your civil marriage certificate. 
  • A copy of all divorce decrees, death certificates, or annulment decrees that demonstrate that all previous marriages entered into by you and/or your spouse were terminated
  • Passport style photos of you and your spouse.
  • Evidence of all legal name changes for you and/or your spouse.

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What happens after the application is submitted?

Once the application is submitted and approved, the spouse will be granted conditional permanent resident status if the marriage is less than two years old. 

To remove these conditions, you and your spouse must apply together using Form I-751, Petition to Remove the Conditions of Residence.

How long does it take to sponsor a green card for a spouse?

The processing time for a spouse's green card application can range from 24 to 32 months. This time is due to the multi-step process that includes filing Form I-130, waiting for a visa number to become available, and undergoing an interview at a U.S. embassy or consulate.

What happens if the petition is denied?

If the petition is denied, there is an option to appeal the decision. It's recommended to consult with an immigration attorney to understand the reasons for the denial and the best course of action.

Related: Top 10 Surprising Benefits Of Having A Green Card

Can a Green Card holder sponsor other family members?

Yes, in addition to spouses, Green Card holders can also petition for certain other family members to immigrate to the United States as permanent residents. These members include unmarried children under 21 and unmarried sons or daughters of any age.

To best navigate your unique situation, seeking legal counsel is highly recommended. The team at Brudner Law can provide the expert advice you need to understand the most effective course of action.

How much must I make to sponsor my wife for a green card?

The income requirement to sponsor a spouse for a green card is typically 125% of the U.S. poverty level for your household size.

However, this can vary based on factors such as using assets to meet the income requirement and whether the sponsoring spouse is on active duty in the U.S. armed forces.

How Can Brudner Law Help You?

It's always recommended that you consult an immigration attorney before filing for any immigration benefit. This becomes especially important if your spouse is undocumented and even more so if you or your spouse have any complicating factors such as having a criminal record or an illegal entry. Brudner Law is experienced in assisting people like you and your spouse. We can help you both determine the best path forward, let you know what to expect, answer your questions, and help you with every step along the way.

If you need any help navigate this complicated process please Contact Brudner Law today and see how we can help.

Give Us A Call!

While the path to a Green card for your undocumented spouse might not be fast or easy, it is often doable. A Green Card for your spouse can give you both peace of mind. Call Brudner Law today and find out what we can do for you!

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