Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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New York, NY 10004

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Can a Foreign National Who Can't Adjust Status in the U.S. Based on Their Marriage to a Citizen Process Abroad Instead?

Q: If a foreign national cannot Adjust Status here in the U.S. based upon marriage to a U.S. citizen because he or she did not enter the U.S. legally and is not 245(i)-eligible, can he or she get a green card through marriage to a U.S. citizen by processing through a U.S. embassy or consulate abroad?

A: In theory, yes - but many people will not be able to do this as a practical matter - or at least, not without a waiver requiring considerable additional effort and expense.

Being in the U.S. without status does not automatically prevent a foreign national from processing for a green card through an embassy or consulate abroad.

However, if a foreign national has accrued sufficient "unlawful presence" in the U.S., the act of leaving to go to an overseas U.S. embassy or consulate may subject the person to a bar to reentry (see our FAQs on the three- and ten-year bars).

The foreign national would either need to wait out the period of the bar while overseas before obtaining permanent residence and reentering the U.S., or obtain a waiver of the bar based on a high degree of hardship to a U.S. citizen spouse or parent (NOT child).

There is a way to obtain a decision on the waiver before having to leave in many circumstances, so that an individual knows before departing that the three or ten year bars won’t be an issue (or course, this doesn’t preclude the consulate form raising some other ground of inadmissibility – so departing to process abroad can still be a daunting proposition).

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.