Getting married is a wonderful thing. But in any marriage there are ups and downs. Maybe before or after you got married, you found out that your new spouse's visa expired OR you find out that they entered the US illegally. This blog will cover BOTH of those issues. 

Entering the US with a valid visa, then it expired

If your spouse entered the US with ANY valid visa but let it lapse or expire, they can adjust their status. This means that because they are an immediate relative and inside the US, so they can adjust their status to a legal permanent resident without leaving the country. Both the I-130 (to prove your in a real relationship) and the I-485 (application for the green card) will be filed together. You will still have to pay the fees for both, plus biometrics, but you will not have to wait for the I-130 to be approved, before filing for a green card. Although this sounds easy, if there are any issues of inadmissibility or a criminal history, it is best to speak with any attorney before proceeding. 

Entering the US without a visa

If your spouse entered the US illegally (for example, crossing the border without being inspected by customs) they CANNOT adjust their status. Instead, they will have to file the I-130 FIRST and wait for it to be approved. Then a 601A waiver needs to be filed. A 601A waiver is needed because the person did not enter the US legally.

Before the 601A waiver was in place, a person who married a US citizen, but entered the US illegally, would have to leave the US and apply for the green card in their home country and this created many issues. If you have unlawful presence in the US it triggers a bar, which prevents you from entering the US for 3 or 10 years, depending on the amount of unlawful presence.

The 601A allows for people to wait in the US for a decision of whether their unlawful presence in the US would be waived. If the waiver is allowed, then the spouse would return to their home country, interview at the US consulate, then be able to return to the US and enter the US lawfully. They would not be barred from reentering and would not have to wait 3 or 10 years to come back to the US.  This process is much more complicated and if your spouse entered the US without an inspection at the border, they can get a green card, but it is important to hire a lawyer to help navigate through the complex issues. 

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.