What If the Immigrant Spouse Waits the Green Card Application in U.S. Illegally?

Question:

My spouse has overstayed her B-2 visa. Can she wait for her Form -130 and Green Card application process inside U.S.?

Answer:

Starting a green card application process, that is filing Form 1-130 and placing the spouse on the waiting list, will not give him or her any right to come to or remain in the United States. Unless a spouse already has a valid visa and has not stayed past the required departure date, the spouse is expected to wait in the home country until the priority date is current, before moving forward to claim any immigration rights.

Waiting in the United States illegally until a priority date becomes current can lead to disastrous results. That is because accruing unlawful presence in the United States can lead to an inadmissibility bar of several years long. With 180 days of unlawful presence, the spouse can be barred from returning to the U.S. for three years; and with one year’s unlawful presence, the time bar becomes ten years.

The ground of inadmissibility arises if your spouse is living illegally in the United States, whether that is due to having entered without inspection or having overstayed a visa. These penalty bars are typically placed by the U.S. consulate when the immigrating spouse goes to apply for the immigrant visa, or green card.