In the U.S. today, there are thousands and perhaps millions of people currently without status — a situation that is becoming problematic now that the current presidential administration is focusing on enforcement of U.S. immigration laws. The requirement to maintain a valid status while in a foreign country is not unique to the U.S. Every country in the world has immigration laws, and most enforce them.

However, the U.S. is unique in the sense that during its last presidential administration, the U.S. permitted millions of individuals into the U.S. without a lawful admission. Within this population of undocumented individuals, some have found love since coming to the U.S., and married U.S. citizens through whom they now wish to be sponsored for U.S. permanent residence, so they can lawfully live in the U.S. with their spouse.

However, marriage to a U.S. citizen does not guarantee a green card for the out-of-status individual. There are several steps and requirements that must be fully met to adjust one’s status to Lawful Permanent Resident (LPR)/be granted a green card and permitted to stay in the U.S. short-term, medium-term or long-term.

First, you have to have had a valid admission to the U.S. if you’re applying from within the U.S. However, being allowed into the country does not necessarily guarantee that you were “lawfully admitted.” Under the prior administration, individuals wishing to claim asylum in the U.S. were granted “parole” rather than being admitted. Parole is temporary permission granted by the Department of Homeland Security (DHS) for someone who is not formally admitted to the country.

If you do not have a valid visa to enter the U.S., where one is required, you can be “paroled” into the country, which permits you to stay for a designated period of time, but not indefinitely. Most often, this is granted for urgent humanitarian reasons (like medical emergencies) or where there is a significant public benefit to admitting the person (e.g., if they have a court appearance or to protect at-risk children). In a nutshell, parole allows individuals to be present legally for a specific period without full admission status. But because it is not a formal “admission” by DHS, it may not be possible to adjust status to LPR based on mere presence in the U.S. — even where there is a valid marriage to a U.S. citizen.

While who can and cannot apply for permanent residence through the adjustment-of-status process is complex — particularly when it is based on an entry via parole vs. a formal admission to the country — there are instances where parole is not enough to permit adjustment. And it is critical to remember that even when adjustment applications are permitted for paroled-in foreign nationals, approval is always subject to the discretion of the adjudicating officer.

A U.S. Citizenship and Immigration Services (USCIS) officer is not required to approve a case; they could, for instance, require that the individual apply for an immigrant visa through a U.S. consulate or U.S. embassy abroad (generally, from one’s home country) in order to become an LPR. Individuals applying for an immigrant visa to the U.S. from abroad may have to deal with inadmissibility issues stemming from time spent in the U.S., if they have overstayed their authorized time based on the terms of their admission or parole into the U.S. and accrued time in unlawful presence while in the U.S. without formal status.

If the foreign spouse of a U.S. citizen is required to request an immigrant visa abroad in order to become an LPR, the process can take a year or more, during which time the individual would generally need a visa or other permission (such as the approval of a Customs and Border Protection (CBP) officer for visa-exempt Canadians) to come to the U.S. and would not be able to stay longer than the period of time they are granted specific to that entry as a visitor. They may also have to show ties abroad, such as employment, assets, financial resources, etc., to convince an immigration officer that they truly intend to leave at the end of their authorized visit.

The best way to avoid issues applying for permanent residence is to plan ahead. If you are thinking of marrying someone who is out of status, you should meet with competent immigration counsel before taking any legal action to ensure you fully understand the potential ramifications of marrying someone in this situation.

For example, it may be that the individual, due to their circumstances and automatic bars to admission or adjusting status in the U.S., will have to live outside the U.S. for a lengthy period of time (sometimes 10 years or more) before they will be eligible for permanent residence based on their marriage to you as a U.S. citizen. Knowing what you’re signing up for and planning to minimize impacts to your family, your lifestyle and your life goals is critical for ensuring that any marriage based legal processes go smoothly and achieve your long-term goals as efficiently as possible.

Lastly, and most obviously, you must have a legally valid and bona fide (legitimate) marriage that is consistent with the laws and public policy of the U.S. to successfully qualify for U.S. permanent residence based on marriage. DHS is on the lookout for marriage fraud at every stage of the application process and does not make it easy to qualify for benefits. It is critical to build a strong case for approval before filing, including evidence of the evolution of your relationship over time, to be able to convince an officer that your request for a green card for your non-citizen spouse is legitimate.

As this article may very well make clear, issues surrounding whether one can, how one can and when one can apply to adjust their status to permanent resident based on marriage to a U.S. citizen, if they are out of status, are complicated. If you are in this situation, searching for answers on the internet is likely to land you in hot water. Even for immigration professionals, these are complicated waters to navigate.

You are best placed to reach out to Elizabeth M. Klarin (eklarin@lippes.com), Eileen M. Martin (emartin@lippes.com) or another one of our immigration professionals at Lippes Mathias or other reputable and experienced immigration counsel, should you find yourself or a loved one in this situation.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.