A perception I frequently encounter is that U.S. citizens can automatically get lawful permanent resident status for their spouse. Unfortunately, the law is not quite so simple.
A foreign national who wants to apply for permission to live permanently in the United States has to go through at least two steps. The first step is relatively straightforward. The U.S. citizen files a petition (Form I-130) to satisfy the U.S. Citizenship and Immigration Service (USCIS) of the basic facts: That the petitioner is a citizen; that the spouse is not a U.S. citizen; that they are legally able to marry; that they are legally married; and that marriage is bona fide. (Lawful permanent residents can also petition for a spouse, but this raises additional issues not addressed here.)
The second step is more complicated. If the foreign national entered the United States with inspection (that is, with a visa and inspected by a U.S. officer at a port of entry), then the foreign national may be able to apply for permanent resident status inside the United States. However, many factors can affect whether the person’s application will be approved: Do the USCIS officials think the applicant told the truth on every previous immigration application? Does the applicant have a criminal history or prior immigration violations? Does the U.S. citizen spouse make enough money to satisfy the Affidavit of Support requirement? These and many other issues can trip up an application. Being married to a U.S. citizen does not guarantee that an application will be approved.
Even more problematic is the foreign national who did not enter the United States with a visa. The penalty for entering the U.S. without a visa and remaining in the U.S. is severe and usually requires an additional application requesting that the government waive of the penalty. Many of these applications are denied. Again, simply being married to a U.S. citizen does not guarantee approval.
Finally, persons who entered without a visa typically must depart the United States and have their permanent resident status decided by a U.S. official at a consulate. Even at this stage — when families have risked all by leaving the U.S. to seek a visa — being married to a U.S. citizen does not guarantee that the application will be approved.
It is because of the complicated laws and harsh penalties that immigration attorneys provide a critical service. Applicants who do not have a thorough understanding of how the law applies to them can find themselves in serious immigration trouble. Even when married to a U.S. citizen.