Can I Be Deported If Married To A US Citizen?
Deportation has been in the media almost everyday so it’s no wonder that immigrants without legal status fear being deported from the U.S.. One question that I get a lot is “can I be deported if married to U.S. citizen?”
The answer isn’t simple because U.S. immigration isn’t simple.
Marriage to a U.S. citizen isn’t an automatic ticket to legal status. I know this sounds so strange because if you were living outside the country, it would be if you qualified for a spouse visa.
But, if you’re in the U.S. illegally your options are pretty limited. The reason for this is based on how you entered the country in the first place and how long you have been accruing unlawful presence.
So, in this post we are going to asnwer whether you can be deported if married to a US citizen. You will learn what some of the options that you (the undocumented spouse) can apply for a green card and avoid deportation.
Selma (who is undocumented) has been married to Nigel (a U.S. citizen) for 6 years. During this time, she was a stay-at-home mom of 3 kids and never thought about applying for a green card. But with all the talk about deportation in the news, she decides to find a way to become a legal permanent resident.
Selma entered the U.S. without inspection (EWI) 15 years ago when she was 17 years old. She hasn’t been in trouble with the law and has 3 U.S. citizen kids to take care of. Will she be able to file forms I-130 and I-485 to get a green card based on her marriage to a U.S. citizen?
In the case above, Selma would not qualify to apply for a green card based on her marriage to Nigel unless she files for a waiver. The waiver she needs to submit if the I-601A waiver that asks USCIS for forgiveness for the unlawful presence time she spend in the U.S..
She will be allowed to stay in the U.S. until the I-601A decision is made but then will need to travel to her home country for the interview.
There are other things that could complicate a case like this so if you have any questions, send me an email with details about your immigration history.
Legal vs Illegal Entry Into The US
One of the biggest factors that will affect your green card application is how you entered the U.S.. Before worrying if you can be deported if married to US citizen, you need to find out if you are eligible to become a permanent resident.
If you entered the U.S. legally on a visa which has expired, you have a much better chance of being approved for a green card than someone who crossed the border without being inspected by CBP.
Why is this?
Well, it’s because you initially intended to get into the U.S. the legal way. This shows good moral character and is forgiven a lot easier than illegal entry.
File Waiver I-601A For Unlawful Presence
Spending time in the U.S. without legal authorization from USCIS can make you inadmissible to adjust your status. This is because of the unlawful presence time you have accrued which requires that you submit a waiver before you are eligible to adjust.
There are two different waivers for unlawful presence: the I-601 and I-601A. Let’s go over the differences below:
- I-601 waiver for unlawful presence is used when the immigrant is living outside the U.S.
- I-601A waiver for unlawful presence is used when the immigrant still lives inside the U.S.
Before the I-601A waiver was created, immigrants were required to be outside the U.S. before applying for the waiver. This caused a lot of problems and family separation because as soon as they lift the U.S., they triggered a 3 or 10 year bar.
So, if you are currently in the U.S. and stayed in the country without legal authorization you must use the I-601A to protect yourself. Only after the waiver is approved should you leave the U.S. to attend the interview.
Lucas entered the country almost 20 years ago at the U.S.-Mexico border. He married his U.S. citizen wife about 10 years later after meeting her while working construction. He is concerned that his status as an undocumented resident will get him deported thanks to Trump’s immigration policy.
Lucas begins researching his rights on adjusting status inside the U.S. based on marriage to his American wife. He learns that he must file for the I-601A waiver along with the I-130 and I-485 petition so he can become a permanent resident.
- Form I-601A
- This is the waiver forms that needs to be filled out and signed.
- Receipt of payment
- You must pay the immigrant visa processing fee. Send this to the Department of States (DOS) after your visa petition is approved but before you are scheduled for the consular interview. Place the receipt on top of Form I-601A.
- Application fee
- Application fee is $630 for 2018.
- Biometrics fee
- If younger than age 79, your required to pay the biometrics (fingerprinting) fee of $85.
- Proof of approved family-based visa petition
- Send a copy of form I-797 approval notice from USCIS. Double check that it shows you as the immediate relative of a U.S. citizen.
- Proof of the U.S. citizen status
- Your qualifying relative must include proof of citizenship. Include a copy of his or her birth certificate, passport, or naturalization certificate.
- Proof of relationship to your qualifying relative
- If U.S. citizen is the spouse, include marriage certificate. If either of you were previously divorced, include divorce or death certificates to prove that the past marriage has ended.
- Evidence of extreme hardship
- You must show that your qualifying relative would suffer extreme hardship if your unlawful presence wasn’t forgiven. If, for example, your U.S. citizen has a medical condition that requires your full-time care, you can provide a doctor’s letter and copies of test results.
- Extreme hardship can relate to health, educational, financial, personal, and any other relevant considerations.
Evidence of Extreme Hardship I-601A
One of the trickiest factors to overcome when filing the I-601A waiver is the extreme hardship clause. It’s not 100% clear exactly what USCIS is looking for but it’s your responsibility to convince them.
Extreme hardship only matters if it directly affects your U.S. spouse. You can’t use extreme hardship of your U.S. citizen children.
For example: if you have a 9 year old son that is in the hospital fighting terminal cancer, you can’t use your absence in your sons life as a form of extreme hardship. Instead, you have to show how your waiver denial would cause extreme hardship to your U.S. spouse caring for your sick son.
It’s situations like the above that get people in muddy water. It’s a good idea to speak with someone who is knowledgeable about U.S. immigration and waivers before submitting one.
This will save you a lot of time and heartache by submitting the I-601A waiver correctly the first time.
If you have any questions regarding the filing of the I-601A waiver, consider signing up for premium support.
Best Evidence To Show Extreme Hardship
- U.S. spouse has severe medical condition that requires your full-time care.
- U.S. spouse suffers from severe mental health condition that requires your full-time care.
- Your home country is currently at war and you fear for your life if sent back.
- Your elderly parents are dying and you need to care for them in the U.S.
For the above situations, you must show actual documentation not just a statement from yourself or family members. Contact me to discuss exactly what documents you should submit.
Don’t risk being deported if married to US citizen by making a mistake on your waiver application.
Can You Be Deported If Married To US Citizen?
The answer to this question is “it depends.”
Having an active deportation order against you is a dangerous situation to be in. It’s not something to take lightly because once you are deported, it’s that much harder to get back into the U.S. legally.
Even though Trump said he would only target the “bad hombres”, it seems like he is targeting undocumented immigrants that have no criminal records and have been in the country a long time.
You need to be careful when showing up for USCIS check-ins because that’s how many undocumented immigrants get arrested and deported. I recommend at least consulting or hire an immigration attorney before making any decisions about your case.
Being married to a U.S. citizen doesn’t automatically grant you immigration benefits. You must still jump thru the same hoops as everyone else applying for legal status in the U.S..
Currently, there is along wait time so when you are ready to finally become a legal permanent resident, apply quickly. Do your research or find a lawyer that is capable to submitting a great application for you.
I will warn you though, if you do use an immigration attorney, be sure to review their work. If they submit a document that has a mistake, it’s ultimately your responsibility. USCIS will not accept a defense of “I wasn’t the one who filled out the forms.”
Ultimately, if you are deported it’s not impossible to get back in the U.S. but it will be much more difficult. Do not try to solve this alone. Speak with someone who is familiar with immigration law before taking the next step.
Ayan is the founder of the Migrant Academy community, the My Path To Citizenship Blog and Podcast.
After successfully navigating the hurdles of US immigration. She now dedicates her time to helping other couples achieve their goals of starting their new life together in the US.