As a rule, foreign nationals (FN) who are not in lawful status, who have failed to continuously maintain status, or who have engaged in unauthorized employment since their entry into the United States cannot adjust status to US permanent resident. Marriage to a US citizen and obtaining an approved petition from the US citizen spouse usually waives all the status violation and the FN will be allowed to receive permanent resident status.
Many FNs staying in the US illegally think that the easy solution to their status violation is to marry a US citizen. However, this relief is not available for all situations. There are instances where marriage to a US citizen and an approved petition will not permit the FN to adjust status. Here are the most common instances where marriage to a US citizen will still not provide relief to a FN.
Entered the US illegally – Foreign nationals must have been inspected and lawfully admitted to the U.S. FNs have been “inspected” when they present themselves to an immigration officer at a U.S. port of entry. FNs are considered admitted when an officer allows them to enter the U.S. As a rule, the I-94 and/or the immigration stamp in the passport is an indication that the FN has been admitted legally. If the FN crossed the border without being inspected and admitted by an immigration officer, he is in the US illegally. He will not be able to adjust status to a permanent resident.
Seamen – Foreign national crewmen who were serving on board a vessel or aircraft at the time of their arrival and “jumped ship” are barred from adjustment of status. This category includes those entered the US as transients – aliens in transit without a visa, travelling through the U.S. to go to another country destination.
J-1/J-2 visa holders – Foreign nationals who entered the US in J-1 or J-2 status and who are subject to the two-year foreign residence requirement will be barred from adjustment if they have not completed their two-year foreign residence requirement or if they have not been granted a waiver of it.
Visa waiver – Foreign nationals who are tourist or business visitors admitted in the US under the Visa Waiver Pilot Program are barred from adjustment of status after their authorized stay has expired. These are FNs who do not need a visa to enter the US. Different jurisdictions may have different applications of the rule.
Fiances – Foreign nationals who entered the US with a K-1 visa or fiancés of a US citizen may only adjust to permanent residence where the adjustment is a result of the FN’s marriage to the sponsoring US citizen within ninety days of entry into the US. If the alien marries a U.S. citizen other than the one who filed the K-1 petition, the alien is still barred from adjustment of status.
Call an Experienced Immigration Lawyer
Marriage to a US citizen is not a magic pill that will cure all immigration problems. Foreign nationals falling into any of the foregoing categories should consult a NJ immigration attorney at Lubiner, Schmidt & Palumbo, LLC to determine the options available to them. Please call us at (844) 288-7978.