Should we get married first before working on her papers? 11 Answers as of November 30, 2011

IF she entered the US unlawfully and is now over the age of 18 and no one had ever petitioned for her prior to April 30, 2001, under the current immigration laws, she is not eligible to adjust status to permanent residence within the US even if she is married to a US citizen. She would need to go back to her home country to consular process but as soon as she departs the US, she will automatically trigger a 10 year bar to reentry, which can only be waived by a showing of extreme hardship to a US citizen spouse, which is fairly difficult to do in most cases.

The problem is if she came in EWI (Entry without inspection) then you must first determine if she qualifies to file all papers and remain in the United States. I have met hundreds of married couples that make an incredible mistake thinking "I'm married to a U.S. Citizen, give me my papers." It is not that simple. Before you take action , be sure to consult with a competent immigration attorney to determine if she is eligible to adjust in the United States or does she have to leave and Consular Process in Mexico.

It depends on several things; exactly how did she enter the US, what if anything was filed for her parents prior to April 30, 2001, any criminal or immigration violations. If she is not eligible for adjustment of status in the US, she will need to apply for the immigrant visa at her home country and if she has over a year of unlawful presence, she will need a waiver for the 10-year bar on entry. Not an easy case as you need to show an extreme and unusual hardship to you for her to qualify. Consult with an experienced immigration attorney.

Unless she entered the US legally or she is protected by 245i, she cannot get green card in the US. instead, she must leave the US and apply for immigrant visa in her home country after your I-130, immigrant visa petition is approved by the USCIS. You cannot file fiancee visa for her since she is already in the US.

If she entered illlegally, and no one has ever filed for her or her parents in the past, then most likely, she will have to leave the U.S. to process his paperwork. You would get married to her. Once you are married, the process begins with the filing of an I-130 immigrant visa petition in which you must establish the bona fides of the relationship. Once the I-130 is approved, the case is sent to the National Visa Center which is the hub for consular processing around the world. The National Visa Center will send you forms that you must complete on behalf of your spouse, including the affidavit of support. The affidavit of support is to demonstrate that you have sufficient income to prevent your spouse from obtaining welfare. After you complete the forms and send them to the National Visa Center, your spouse will be scheduled for an interview at the consulate. However, if she has been in the U.S. unlawfully for more than one year after the age of 18, she will have accrued one year of unlawful presence. When she leaves to process her visa at the consulate, her one year of unlawful presence will trigger a 10 year bar to reentry and she will need a waiver of that 10 year bar in order to return. To obtain the waiver, she must prove that it will be an "extreme hardship" on a U.S. citizen or lawful permanent resident spouse or parent. If the waiver is granted, she will enter as a permanent resident. You should definitely consult with an immigration attorney before proceeding in this case.

The main issue you need to focus on is the fact that your fianc entered the United States illegally. I understand she was only three months old at the time, but she is not eligible to adjust her status in the United States since she did not enter with valid visa documents. She would have to return to Mexico and process through the U.S. Embassy/Consulate unless she is eligible to derive benefits under INA 245(i), which is more commonly known as grandfathered. Once she leaves, she will likely need a hardship waiver for her unlawful presence in the United States. This will require showing you will suffer extreme hardship if forced to live apart during the statutory bar period. Your fianc will not be eligible for a fianc visa so it is best for you to marry before filing any documents. However, I strongly advise you and your fianc to discuss the matter in more detail with an immigration attorney.

Unfortunately, under current law, even if you were to marry your fiance, she would not be eligible to adjust her status to permanent resident status within the U.S. because she is unable to establish a lawful admission to the U.S., one of the requirements for adjustment of status, even for those married to U.S. citizens (with certain limited exceptions, like those covered under Section 245 (i) of the Immigration and Nationality Act, which is certainly an issue to be explored to see if she might have some "grandfathered" coverage under that provision). Additionally, she has apparently accumulated more than one year of unlawful presence, making her inadmissible for a period of ten years, and that ten year bar would be triggered upon her departure to a U.S. Consular Post in her country of birth in order to process an application for an immigrant visa that is based upon an approved petition that you would be filing on her behalf. There may be a hardship waiver of that ten year bar available, so that should be another issue that is thoroughly reviewed and considered by legal counsel. In other words, you can marry, and you can file an I-130 immediate relative petition on her behalf. That petition could even be approved, but after the approval of the petition, she would run into difficulties securing permanent resident status based on that approved petition. I'm not saying that she wouldn't be able to secure permanent residency, just that she would either need to document eligibility for adjustment of status (such as under Section 245 (i) of the INA), or she would have to be eligible for a waiver of the 10 year bar to readmission, and have a very solid case for the favorable adjudication of the waiver request.

A fiance visa will require an explanation as to why she is in the US illegally in the 1st place among other issues. If you were married, then the single issue will be that of getting her a visa and waiver approval at a consulate abroad. It has the advantage of narrowing the issues for you. I will strongly advise that you both consult with competent counsel as there may be other avenues that are not apparent from the little bit that you told me. Do that before proceeding with any application.

Your fiance cannot obtain legal status without leaving the U.S. You should consult with an experienced immigration attorney before you take any steps.

If she has been living in the U.S. one year past hear 18th birthday, she will be subject to a 10 year bar if she leave the U.S. Since she came in unlawfully, she must have evidence that she was the beneficiary of a family or labor petition filed on or before 4/30/01.