When pursuing U.S. residency or citizenship for a same-sex partner who entered the country illegally, there are both opportunities and challenges.
Question
My partner is Mexican, and I am an American citizen. She, on the other hand, has no legal standing in the United States since she crossed the border illegally when she was in her early twenties. Can I assist her become a citizen of the United States if we marry?
Answer
Your question has multiple major legal implications, which we will attempt to discuss individually here.
How a same-sex marriage may lead to a green card in the United States
First, there is the issue of same-sex marriage and immigration advantages in the United States, which exist since the United States Supreme Court’s Windsor decision eliminated the impediment to immigration privileges for same-sex couples. In immigration law, the spouse of a U.S. citizen is considered a “immediate relative,” and therefore is immediately eligible to petition for legal permanent residence in the United States (a green card).
The most significant aspect of petitioning for a same-sex spouse is ensuring that the marriage is lawful in the state and nation where it occurs. If you marry in the United States, you must obey all applicable state laws (such as prohibiting marriage between close relatives or where one party is underage). However, according to a Supreme Court ruling known as Obergefell v. Hodges, same-sex marriage is now legal across the United States.
Before proceeding with the immigration procedure, get a certified copy of your marriage certificate
Even couples must complete a multi-step application procedure to get a green card.
Then there’s the question of what rights a same-sex spouse or any spouse of a US citizen gains: It is premature to discuss US citizenship. Following a successful application, you will be granted a green card, or legal permanent residency in the United States.
Also, if your marriage is less than two years old when you file the visa petition (Form I-130) to begin the application process, your spouse will be granted “lawful conditional residence” rather than “lawful permanent residence,” and you will have to file another application (Form I-751) before the end of the two-year period to remove the conditions and become a full-fledged permanent resident. A green card holder may seek for US citizenship after three years of marriage and living with a US citizen.
How an illegal foreign spouse complicates issues
Now comes the tricky part of your question: your girlfriend’s undocumented status. Because she entered the country unlawfully and has been in the country for more than six months, she is likely to face inadmissibility issues, as outlined in Consequences of Unlawful Presence in the United States—Three- and Ten-Year Time Bars.
That implies that, although she is theoretically qualified for the green card, she will most likely not be allowed to remain in the United States to apply for it, but she may still apply at a U.S. consulate in Mexico. But, before leaving the country, she should seek for a “provisional waiver,” if she qualifies. If you leave the United States without it, you may be barred from returning for three or 10 years. And the waiver must be based on substantial hardship to her US citizen or permanent resident husband (you) and/or parents.