[COLUMN] Naturalizing with an undocumented spouse

DEAR Atty. Gurfinkel:

I have been a green card holder for over 5 years, paid my taxes, committed no crimes, and am eligible to apply for U.S. 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.  ’m afraid that if I apply for U.S. 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 U.S. 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 U.S. citizen petitions an undocumented spouse, that spouse could be eligible to apply for a green card (or adjust status) in the U.S.

Please note: There are some cases where even marriage to a U.S. citizen would not enable an undocumented person to adjust status in the U.S. This would include crewman/jump ship without section 245(i); those who entered the U.S. 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 U.S.

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 U.S., and his working in the U.S. She truthfully responded that the husband had entered the U.S. 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 U.S. (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 U.S. 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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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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