Naturalizing with an undocumented spouse

Dear Atty. Gurfinkel:

I have been a green card holder for over five years, paid my taxes, committed no crimes and am eligible to apply for US citizenship. However, my spouse is out of status (he entered as a tourist and overstayed). I reviewed the naturalization application, Form N-400, and there are many questions about my spouse. I’m afraid that if I apply for US citizenship, and I disclose the information about my spouse’s status, they could go after him and put him in deportation. What should I do?

Very truly yours,

LK

Dear LK:

Many immigrants/green card holders are married to undocumented immigrants or someone who is out of status. Of course, they would like to petition and legalize the immigration status of their spouse. However, if they petition the spouse while they are a green card holder, ordinarily, the undocumented spouse would not be eligible to apply for a green card in the US. Instead, they would have to return to their home country on a provisional waiver and apply for their immigrant visa there.

However, in many cases, if a US citizen petitions an undocumented spouse, that spouse could be eligible to apply for a green card (or adjust status) in the US.

Please note: there are some cases where even marriage to a US citizen would not enable an undocumented person to adjust status in the US. This would include: crewman/jump ship without section 245(i); those who entered the US without inspection (EWI or snuck across the border) without section 245(i) and those who entered on a K-1 fiancé visa but did not marry the K-1 petitioner and instead married someone else.

Therefore, in your case, I can understand it would be very important for you to be able to naturalize to enable your undocumented spouse to apply for a green card (or adjust status) in the US.

In my opinion, the benefits of applying for naturalization outweigh the possible risks to your undocumented spouse. I have yet to come across a case where someone “endangered” their undocumented spouse by applying for naturalization. I remember in one case, my client was being interviewed for naturalization, while her undocumented spouse was waiting in the parking lot of the federal building where the interview took place. The officer did not question or focus on the undocumented spouse.

Just recently, a client was interviewed for naturalization and the officer did ask her about her husband’s immigration status, entry into the US and his working in the US. She truthfully responded that the husband had entered the US on a valid visa and was out of status. After approving her naturalization, the officer himself told her she could now file a petition for her husband and he could adjust status in the US. (Coincidentally, we had already advised our client of this fact, which was the main reason she was applying for naturalization, and she had already signed up to petition him, once she took her oath of citizenship.)

If you are eligible for US citizenship and hope to petition an undocumented spouse, or if you have any other questions or concerns about eligibility, risks, chances, etc., I would recommend you consult with an attorney, who can evaluate your situation and represent you. While that would not “guarantee” results, it could greatly increase your chances for success.

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