How can marriage help unauthorized immigrants stay in the U.S. legally?
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- A U.S. citizen can sponsor their immigrant spouse for them to get a green card.
- If you entered the country unauthorized once, you must request a waiver from DHS.
- If you entered the country unauthorized twice, you may not re-enter the U.S. for 10 years.
When Jenni Rivera married her husband, Fidel, she knew he did not have legal status to be in the country, but she thought marriage would fix his immigration issues.
It wasn’t so simple.
The Riveras spoke with two immigration attorneys who said the couple had two options: hope the law changes or leave the country. Almost 17 years later, Fidel Rivera decided to self-deport, The News & Observer reported, leaving him unable to re-enter the U.S. — where he’s lived since 1995 and has two daughters — for at least 10 years.
How, then, can someone gain legal residency, and even citizenship, through marriage?
And what can the 1.2 million unauthorized immigrants who are married to U.S. citizens (according to estimates from the criminal justice and immigration reform group FWD.us) do to gain legal status?
The N&O spoke with UNC-Chapel Hill School of Law professor Rick Su and Winston-Salem immigration attorney Helen Parsonage to find out.
How do you gain citizenship through marriage to a U.S. citizen?
To gain citizenship, you must get a green card, which allows you to apply for naturalization as a U.S. citizen after a certain period of time. If your spouse is a U.S. citizen, they can be your sponsor for a green card, Parsonage said.
An immigrant’s spouse must petition the U.S. Department of Homeland Security to recognize the immigrant as their spouse, Parsonage said. The couple must prove they’re in a real marriage through joint tax returns, leases and photographs, as well as children they’ve had together.
At the same time, an immigrant can file their application for residency; this is why the process is referred to in immigration circles as a “one-step” process.
“It’s about as straightforward as immigration processing comes,” Parsonage said.
The one-step process is still available to those who entered the country with a visa but overstayed it, Parsonage said. Even someone who overstayed their visa 10 years after it expired is still eligible for a green card if their spouse sponsors them.
Roughly 42% of the 11 million unauthorized immigrants in the U.S. have overstayed their visa, according to a 2023 estimate from the Congressional Research Service.
But what about those who came to the U.S. without a passport or a visa?
What if you came into country unauthorized?
Immigrants who entered the U.S. without authorization must get an immigrant visa from the U.S. consulate in their country of origin, Parsonage said. But if you entered the U.S. illegally, going back to your home country could bar you from coming back.
If you don’t regain legal status after six months and leave the U.S., you’ll be barred from re-entering the country for three years, Su said.
If, after a year, you still lack legal status and leave the U.S., you’ll be barred from re-entering the country for 10 years.
Are there any exceptions?
There is a waiver for those who only entered the U.S. once without authorization, Parsonage said. Immigrants can request that DHS waives the unlawful presence. In most cases, DHS approves the waiver.
Even as the Trump administration cracks down on illegal immigration, Parsonage said she hasn’t seen standards for getting a waiver tighten yet — but that could change any minute. And the process is slow — it regularly takes two years for DHS to approve waivers.
The other catch: those who request a waiver must still leave the U.S., Parsonage said.
“A lot of couples choose not to go down that road just because the idea of sending their spouse off to another country and keeping your fingers crossed they will get back is more than many U.S. citizen spouses can even consider,” Parsonage said.
What if you entered the country unauthorized more than once?
If, for example, you have been in the U.S. illegally for over a year, left the country to attend your mother’s funeral and came back to the U.S., leaving the country again to get a visa subjects you to a so-called “permanent bar,” Parsonage said.
In this case, you cannot come back to the U.S. for 10 years, Parsonage said — even if your spouse is your sponsor. Even a waiver for your unlawful presence cannot be granted for at least a decade.
“That’s one of my least favorite parts of my job — telling somebody you are subject to the permanent bar and you guys [have to] remain outside the US for 10 years,” Parsonage said.
Fidel Rivera had left the U.S. briefly to visit family for the holidays, Jenni Rivera said. He, therefore, wasn’t eligible for a waiver from DHS for at least 10 years. When Fidel was faced with the decision of leaving or staying, he and Jenni had a newborn and had no intent of going anywhere.
For immigrants like Fidel, there lies a catch-22, according to Su.
“Now the problem is I can leave and then get my [immigrant] visa, but the time bar says I have to wait three or 10 years, so most people don’t do that,” Su said. “But I can stay in the country and not leave, but that means I can’t put myself on a legal visa.”
For a brief period, immigrants in this catch-22 could adjust their legal status without having to leave the U.S. after a 1994 amendment to the Immigration and Naturalization Act, Section 245(i), Su said. But after extending the provision multiple times, Congress allowed Section 245(i) to expire after April 30, 2001.
In June 2024, former President Joe Biden issued an executive order to allow immigrants who have a spousal sponsor but would be barred from re-entry if they left the country to request parole in place so they could apply for adjustment of status.
Texas sued the Biden administration over the executive order, and the United States District Court for the Eastern District of Texas blocked the order in November 2024.
This story was originally published October 23, 2025 at 9:51 AM.
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