What Happens When Your Spouse is Undocumented, but You are Not

Lawful immigrants make up 75% of the foreign born population in the United States. For the remaining 25%, the process of securing legal lawful residence can be arduous, time consuming, and sometimes fruitless. To make things more complicated, the number of mixed-status couples (couples where one partner is undocumented and the other is a citizen or lawful resident) are on the rise.

There are several Internet forums asking the question, “Can I marry someone who’s undocumented?” or “Can a DACA recipient marry a US citizen?” The answer to these questions is yes–there’s no law banning US citizens from marrying undocumented residents. However, marriage alone does not automatically provide legalized permanent residence (a green card) to an undocumented partner. It can, however, help them qualify for their own green card.

In 2013, the first I-601A Unlawful Residence Waivers were made available. This allowed people who entered the United States without documentation, or individuals who were otherwise unable to receive green cards in the United States, to have their file reviewed by US Citizenship and Immigration Services (USCIS). The law originally applied only to spouses and children of US citizens, but in 2017, it was expanded to include the spouses and children of lawful residents.

To qualify for the I-601A waiver, applicants need to demonstrate that their citizen or lawful resident spouse would experience extreme hardship without them. This includes showing family ties in the United States and explaining the conditions in the country from which the applicant has come. The emotional toll of the separation alone does not qualify. Applicants also need to demonstrate that the marriage is legal, and that they haven’t married only for the purposes of obtaining a green card. If the waiver is granted, the applicant will often have to return to their home country for an interview at the US Embassy before being approved for the green card.

With that said, every situation varies. Mixed-status couples should consult an immigration lawyer before they begin the process. Individuals who have been living in the United States without documentation can be barred from returning without the 601A waiver, so it’s crucial that couples acquaint themselves with the law. Also take the time to find a good immigration lawyer–there are several scammers (sometimes known as “notarios”) who misrepresent their qualifications and charge exorbitant fees for bogus advice. Read reviews and talk to trusted acquaintances to find the best immigration lawyers available.

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