Marrying a U.S. Citizen: Not a Guarantee Against Deportation

Best explained by Immigration Attorney David Leopold:

"Most people think that marrying a U.S. citizen is a guaranteed path to citizenship. It’s not. I’ve heard many people say, After all, she’s married to an American. Why can’t she stay here? It’s way more complex than that, especially if the immigrant entered the country without documents.

Immigration law generally requires that for an immigrant to adjust or change status to temporary worker or green card holder, he or she must have lawfully entered the United States — even if they’re married to a U.S. citizen. Immigrants who entered the country without inspection — even as young children — generally cannot apply for a green card inside the United States under any circumstances, including if they marry a U.S. citizen.

To further complicate matters, if the undocumented immigrant had, at any time, been placed in deportation proceedings and received a final administrative order of deportation, U.S. Citizenship and Immigration Services (USCIS) cannot adjust the immigrant’s status, because the agency has no authority over the case. The only way to get the case before the USCIS is to ask an immigration judge to reopen it. But that’s nearly impossible to do if the case has been closed for more than three months, and ICE — whose mission is to deport people — must agree. Not surprisingly, that rarely happens.

So, for millions of undocumented immigrants who qualify for a green card through marriage, their only option is to leave the United States and apply for an immigrant visa at a U.S. consulate in their home country. But the minute they leave the United States, another part of the law kicks in to ban them from returning for up to 10 years because of their previous unlawful presence. Spouses of U.S. citizens may be able to get the 10-year ban waived if they can show their absence would cause extreme hardship to their U.S.-citizen or lawful-resident husband or wife." 1

Prior to 1996, a US Citizen would go before a judge with their immigrant spouse to present their case with the judge weighing the positives and negatives of the immigrants' infractions. If the ruling was favorable, the US Citizen's spouse could adjust status and legalize.

In 1996, Congress and then President Bill Clinton passed the IIRIRA (The Illegal Immigration Reform and Immigrant Responsibility Act), implementing various barriers in the form of immigration bars that affect anyone who might be undocumented regardless of their marriage to a US Citizen.  It also stripped their right to a judicial review.  These bars range anywhere from 3, 5, 10 years long where the immigrant spouse is forced to leave the US, away from their US Citizen spouse and family.  For the most unfortunate, there is even a permanent bar for life without the ability to present their case to a judge.  We think this is unconstitutional and wrong.

Since 1996, hundreds of thousands of US Citizens and their families entering the LEGAL immigration system have been negatively impacted.  These US Citizens and their children are being forced to choose separation or exile outside of their own country.

It is because of these unjust laws, that C.A.R.E.S. is fighting for waiver reform and a bipartisan fix to this issue that we believe legislators should agree upon.  Waivers already exist in the system for proven bona fide marriages, whereby an application can be made to "waive" the offending immigration bar, and if approved, remedy the legal status within the current immigration system.  Expanding the existing waiver system to cover a broader range of bars can end the egregious destruction of American families.

1(David Leopold, Immigration Attorney: https://medium.com/@DavidLeopold/why-cant-undocumented-immigrants-just-get-legal-bde44557b7c1)

Also see: Immigration 101: Why Marrying a US Citizen Does Not Automatically Legalize an Undocumented Immigrant