I'm a Canadian living in the US on a green card, my girlfriend is undocumented. Is there any chance of me legalizing her through marriage?

Eng_steve

New Member
So here's the situation: Myself and a wonderful undocumented girl that has overstayed her tourist visa (she entered legally) have been dating for some time. We've reached the point at which we're seriously considering whether or not we have a chance at a future given the fact that I won't be able to apply for citizenship for another ~4 years. For context we're in our early 30's and acknowledge that before anything drastic like marriage and kids comes along we'd need to get our ducks in a row.

Now, assume that we do decide to get married here in the US in the next couple years. To my understanding, since I'll still be on a green card, she'll not only face long wait times if we were to apply for her green card through me as a sponsor but she'll also have to leave the country and therefore be subject to a ten year bar for re-entry. This uncertainty is obviously not ideal and doesn't afford us the safety required to begin settling down.

I guess the question boils down to this: Is there a possibility of me legalizing her through marriage while I hold a green card, allowing us to be at least reasonably settled here in the next 5-ish years with everything above board, or is this something that I'll have to wait until I gain citizenship for. We both acknowledge that a life together in the US may just be a pipe dream and are both prepared to accept reality and part ways should that be the case.
 

Sm1smom

Super Moderator
There's no such thing as legalizing someone through marriage. Just being married to you will not provide her with a legal status. Your only options are to wait until you become a USC and subsequently file for her - the overstay will be forgiven and she wouldn't have to leave the US in order to apply for her GC. Or get married now, file for her - this will require her leaving the US (which like you already know, will automatically trigger a 3 or 10 year bar - depending on how long she has overstayed) to attend a consular interview. You may be able to file a waiver demonstrating you, as a LPR spouse, will face extreme hardship due to admission bar your spouse will be under. Note, an demonstrating extreme hardship could be quite difficult. So find yourself a highly experienced immigration attorney with noted successful rates of waiver filings and go talk to them.
 

Eng_steve

New Member
That's about what I can gather, thank you for the reply. As a side question, would you have any idea of the timeline for gaining citizenship after the 5 year naturalization period is up with the green card? I'm having trouble finding any definitive answer on that.
 

newacct

Well-Known Member
What date does it say on her I-94?

If she has accrued more than 180 days of "unlawful presence", Sm1smom has basically covered it -- the only two options are wait until you become a US citizen and she does Adjustment of Status inside the US, or do Consular Processing abroad with a waiver. I would add that it's possible to apply for a "provisional waiver" for this ban with I-601A, before she leaves the US, so that she would know the result before leaving the US (and obviously would only leave if it were approved). But again an immigrant waiver for this ban requires "extreme hardship" to you, which very hard to meet.
 

Eng_steve

New Member
I'm not sure what the date is unfortunately, but it's best to assume the worst I suppose. I really doubt that the criteria for the provisional waiver would be met since I'm rather well established here already, no kids together, etc. It looks like a path forward only becomes available once I'm a citizen.
 

newacct

Well-Known Member
Are you sure it was a "tourist visa"? The reason I ask is that people who enter on some other types of visas (e.g. F student visa or J exchange/inter visas) usually don't have a date on their I-94, which would mean they don't usually accrue unlawful presence.
 

Eng_steve

New Member
It was definitely a tourist visa. She was originally just visiting family here and never returned to her home country due to general safety concerns/unrest in her home town.

Another question that just came to mind. How would the US know if she overstayed? Most Mexicans are able to just walk into the country without any kind of passport check, and she's left no trace here since entering. If she were to just walk back into her home country would they know upon reentry that she overstayed?
 

newacct

Well-Known Member
It was definitely a tourist visa. She was originally just visiting family here and never returned to her home country due to general safety concerns/unrest in her home town.

Another question that just came to mind. How would the US know if she overstayed? Most Mexicans are able to just walk into the country without any kind of passport check, and she's left no trace here since entering. If she were to just walk back into her home country would they know upon reentry that she overstayed?
They might not know the date she left, but that doesn't help her -- when in doubt, the burden is on her to prove the date she left, or they will assume she continued to be here.
 
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