In the United States, people are free to marry anyone they choose, regardless of that person’s immigration status. There is no law that precludes a green card holder from marrying someone who has an expired visa (is “out of status”). In fact, the spouse of a U.S. resident has a right to a green card -- eventually. Due to long waits and various procedural complications, actually collecting that green card may take years -- or be practically impossible.
First, let’s make sure the foreign national is really out of status. In most cases, this occurs after the expiration date of the alien’s I-94 (Arrival/Departure card). However, there are particular cases, (such as J-1 and F-1 student visas), in which no specific expiration date is indicated on the I-94. Instead, the I-94 card may be marked “D/S,” for “duration of status.” That means the visa holders can stay until their studies are completed.
You can also lose your status by violating the terms of your visa, such as by working when you’re not allowed to.
Risks of Remaining in the U.S. With No Immigration Status
Someone who remains in the U.S. out of status may be picked up by immigration authorities at any time, and placed in removal proceedings. What’s more, the person may start accruing “unlawful” presence,which can lead to a three or ten-year bar on that person’s ability to get a green card. For more information, see “How Long Will I Be Banned for Overstaying a U.S. Visa?”
Does It Help When the U.S. Resident Files an I-130 Visa Petition for the Immigrant?
A green card holder may, in order to start the immigration process, file an immigrant visa petition for his/her spouse, using USCIS Form I-130 (Immigrant Petition for Alien Relative). At that point, the U.S. resident becomes what’s called the “petitioner,” and the spouse becomes the “beneficiary.”
However, the beneficiary will not be able to obtain a green card immediately following the approval of the I-130 -- and in the meantime, will have no right to remain in the United States. Spouses and children of U.S. residents fall into the so-called “family preference” category; and are subject to annual visa allocations according to their country of birth. Due to high demand from other applicants, a long waiting period has developed, and it may be years before an immigrant visa becomes available for these beneficiaries.
In the meantime, approval of the I-130 petition will not grant the alien spouse any legal status. Nor will it give the beneficiary any rights to reside legally in the United States, work, obtain a Social Security number, or receive government benefits. The spouse is still expected to leave the U.S. to wait until the end of the process, when an immigrant visa is approved.
How Long the Wait for a Green Card Will Be
The waiting period could be several years, depending on the country of the alien’s birth and how many other people are applying for the same type of visa. Upon receiving the I-130 petition, USCIS gives the beneficiary a “priority date,” which establishes his or her place in line. See "How to Track Your Priority Date" for an explanation of how the waiting period works.
How the Petitioner Can Speed Things Up
If the U.S. resident petitioner can obtain U.S. citizenship, the beneficiary will become what’s known as an “immediate relative,” and jump straight to the head of the line.
You’ll need to notify the appropriate government agency, either USCIS or the NVC, depending on which has the file. Ask it to upgrade the case to “immediate relative of U.S. citizen” classification. Include a copy of the I-130 approval or receipt notice, along with proof of the petitioner’s U.S. citizenship, such as a copy of the Certificate of Citizenship or a U.S. passport biographic page.
For more information, see “Visas and Green Cards Based on Marriage to a U.S. Citizen.”
Does the Green Card Holder Face Risks for Marrying Someone With an Expired Visa?
The immigrant status of a U.S. resident will not be affected by marrying a foreign national who is has no legal status. Although the government can revoke a green card due to just cause, (such as commission of a serious crime,being engaged in a terrorist activity, or when the U.S. resident lives in his/her home country), marrying someone with an expired visa will not jeopardize your green card.
In the same manner, marrying someone who is out of status will not have any negative effect on your application for U.S. citizenship; it will not delay the processing of your case nor hurt your chances of proving good moral character.
When you file your application for citizenship, you need to provide all the required information on USCIS Form N-400. The form asks about your marital status and your spouse; you will need to state your spouse’s (a) name, (b) date of birth, (c) type of visa, and (d) date and place of your marriage. You must answer truthfully. If you elect not to disclose the facts about your spouse and his/her “illegal” status in the U.S., it may damage both your right to citizenship and your ability to help your spouse immigrate.
What Happens After the Beneficiary’s Priority Date Becomes Current
Assuming the petitioner hasn’t become a citizen, then the case can start moving forward again after the petitioner’s priority date becomes current. At that point, it’s unlikely that the immigrant, if still living in the U.S., will be eligible to stay in the U.S. to finish the green card application process -- that is, to “adjust status.” The beneficiary will be expected to return to his or her home country for the consular interview.
But that raises the possibility that the beneficiary will be subjected to a three or ten year bar on returning to the United States, as a penalty for having spent time in the U.S. unlawfully. Your best bet is to talk to an attorney for a full analysis of your options. Also see “Green Card Application Processes” for more information.
After the Green Card Is Approved
If the consular (or USCIS) interview is successful, a two-year conditional immigrant status will be granted if the marriage is less than two years old at that time. However, this is likely to occur only in cases where the petitioner became a U.S. citizen shortly after submitting the I-130 petition. In most cases involving marriage to a permanent resident, the beneficiary will have already been married at least two years upon receiving a green card. In that case, the green card will be a permanent one and the beneficiary will not have to deal with conditional residency.
