When Can Asylee Get Green Card for New, Undocumented Spouse?

After applying for and being granted asylum in the United States, it is possible you might meet and decide to marry someone who lives in this country. But what if your fiancé arrived in the United States unlawfully—for example, made their way across the border from Mexico? Would your marriage allow you, as an asylee, to get lawful immigration status for your new, undocumented spouse?

Only Preexisting Marriages Can Be Automatically Included in an Asylum Grant

In some situations, it is possible to include a spouse in an asylum grant, although this does not help in the situation described here. U.S. immigration law says that any spouse or child under 21 who is physically in the United States at the time of the asylum adjudication (the decision made by U.S. Citizenship and Immigration Services (USCIS) or an immigration judge) can be added to the asylum application as a dependent. That means the dependent will be granted asylum if the principal applicant is granted asylum. (See 8 C.F.R. § 208.21.)

However, in order to list a spouse as a dependent, the legal relationship must have existed before the grant of asylum. If you marry your fiancé only after you receive asylum, and your fiancé was not physically in the United States when you won your case, that person cannot obtain asylee status from your claim.

Waiting Until You're a Lawful Permanent Resident to Petition for an Immigrant Spouse

As an asylee, you are allowed to apply for and obtain a green card for yourself one year after the grant of asylum. (That application and approval process in itself can take several months, as described in How to Apply for Permanent Residence (a Green Card) as an Asylee.)

Once you receive your U.S. residence and green card, you can file a petition for for your spouse, in order to start off the immigration process. (See Preparing an I-130 Visa Petition for the Immigrating Spouse of a U.S. Permanent Resident.)

It is important to realize, though, that approval of an I-130 petition will not, by itself, get a spouse a green card. Because of high demand for visas (green cards) in the 2A category for spouses of U.S. lawful permanent residents, and a limit on the number of visas given out each year, a waiting list usually develops. The result is that your spouse will probably have to wait for a current Priority Date, which typically takes from two to five years, and only then file an application for U.S. residence. (See articles discussing the Application Process for a Green Card Based on Marriage.)

There's an additional catch. A spouse who is undocumented probably won't be able to adjust status within the United States (that is, to do the entire application process without leaving the country to attend an interview at a U.S. consulate). Only a few categories of people can use the adjustment of status procedure instead of applying for their green card using the procedure known as "consular processing."

Here's the problem with consular processing: Foreign nationals who have been in unlawful status in the United States for six or more months are likely, upon leaving the U.S. for any reason (including the required consular interview), to be barred from reentering for three or ten years. The amount of time a person is barred from reentry depends on whether the unlawful stay was between six months and one year or greater than one year. For more information, see Living in the U.S. and Married to a U.S. Permanent Resident: What Are the Immigration Options?

A waiver of the unlawful presence ground of inadmissibility is possible, but only if you can show hardship to close U.S. relations.

The Process Gets Slightly Easier After You Become a U.S. Citizen

If an when you naturalize and become a U.S. citizen, your foreign-born spouse no longer has to deal with a waiting list. As an "immediate relative," they are theoretically eligible for a green card right away. But there's still the "adjustment of status" versus "consular processing" problem, and the likely need for a waiver.

Starting in August of 2024, however, there was supposed to be a possible exception that could help, except that it has been put on hold by a Trump-appointed federal court judge in Texas.

If it survives this litigation, however, it will mean that foreign spouses of U.S. citizens who have been in the United States since June 17, 2014 (10 years before a Biden order creating this new program) can, if otherwise eligible, apply for what's called "Parole in Place" or PIP. This basically turns their unlawful entry into a lawful one, allowing them to adjust status and avoid inadmissibility based on unlawful presence. See the USCIS web page on Process to Promote the Unity and Stability of Families and its Filing Guide for
Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens for more information.

Getting Legal Help

This is a difficult situation, and one in which you'd want to explore all possible options; for example, whether the undocumented spouse might be separately eligible for asylum. It would be wise to consult with an experienced immigration attorney to help figure out the best course of action, prepare the forms, and draft convincing legal arguments and documents to support the application.