A foreign national who entered the U.S. illegally or overstayed his/her visa may be able to get a green card through either a U.S. Citizen (USC) or Lawful Permanent Resident (LPR) spouse. In both cases, the spouse must file a marriage-based petition, which requires showing the marriage was a legitimate marriage, and not simply to obtain a green card. The main difference comes in once the petition has been approved. In the case of an LPR, the spouse will have to wait in line for a visa to become available. This is because there is a cap on the number of green cards that can be issued each year to spouses of LPRs. The wait time can differ based on where the applicant is from and is often about two years. In the case of a USC, there is no cap for spouses, so there is no line.

In both cases, once the visa becomes available, the person must obtain a waiver of inadmissibility due to illegal presence. An individual can get a “provisional” waiver in the U.S. through USCIS. The basis for the waiver is the “hardship” it would cause his or her USC or LPR qualifying relative (parent or spouse). In both cases, other factors are important too – for example, criminal history or having lied about immigration status. If any of these exist, the person may be ineligible for the waiver.

Further, in order to be found admissible the foreign national must exit the U.S. and go to the U.S. consulate in his or her country of citizenship, where the consular office conducts its own examination. If other factors come to light, the consulate may deny entry and often will revoke the provisional waiver as well. If there is a waiver available for the other factors, the individual may still be admitted if he or she is approved. Usually this also requires applying for a “hardship waiver” a second time.

However, in the absence of complications, once USCIS approves the waiver in the U.S., the spouse with illegal presence can file an immigrant visa application and attend an appointment at the consulate to obtain the immigrant visa. Within a week or two, the foreign national should be able to join his or her petitioning spouse in the U.S. as a Lawful U.S. Permanent Resident.