Legal Question in Immigration Law in California

If he entered without a visa (EWI), and you petition for him after marriage, he will not be eligible for SSN, work permit or a green card through adjustment of status (unless someone had petitioned for him in the past prior to 04-2001). Depending on his situation, it's highly possible that he will have to go back to his home country to apply for a visa (green card) at the US embassy/consulate and a hardship waiver will be required.

As a US citizen spouse, you can petition for him with the DHS. Whether he will be able to come back to USA, it's hard to say. Before you marry and petition for him, you should consult an immigration attorney.

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There's no straight answer, unless your spouse had a labor certification or immigrant petition filed on her behalf before 4/30/01 or somehow she already holds immigration or citizenship status but is not aware she does - it's possible.

The reason there is not a straight answer in most cases is because upon required departure to procedurally secure immigrant status (by visa rather than adjustment of status in the US which she'd not qualify for unless the above occurred), a "discretionay" waiver is required to be approved. That waiver doesn't have to be approved just because you're married. "Extreme Hardship" to you must be found, and this is far beyond "mere" separation if your spouse had to depart the US for 3 or 10 (or more) years. A lot more must be proven and the government could turn the application down.

Time is on your side in such a case though. The longer a couple is together, the greater the likelihood to successfully approve the waiver.

The above is general information. It is not legal advice and does not form an attorney/client relationship. Feel free to contact me at [email protected] or 818 609 1953 for further information.

Sincerely,

Alice Yardum-Hunter, Attorney, Certified Specialist, Immigration & Nationality Law

State Bar of CA, Bd. of Legal Specialization