Can a Foreign National Married to a U.S. Citizen Who Can't Adjust Status in the U.S. Process Abroad Instead?

Q: If a foreign national cannot Adjust Status here in the U.S. based upon marriage to a U.S. citizen because he or she did not enter the U.S. legally and is not 245(i)-eligible, can he or she get a green card through marriage to a U.S. citizen by processing through a U.S. embassy or consulate abroad?

A: In theory, yes - but many people will not be able to do this as a practical matter.

Being in the U.S. without status does not prevent a foreign national from processing for a green card through an embassy or consulate abroad.

However, if a foreign national has accrued sufficient "unlawful presence" in the U.S., the act of leaving to go to an overseas U.S. embassy or consulate may subject the person to a bar to reentry (see our FAQs on the three- and ten-year bars).

The foreign national would need to wait out the period of the bar while overseas before obtaining permanent residence and reentering the U.S., or obtain a waiver of the bar based on a high degree of hardship to a U.S. citizen spouse or parent (NOT child).

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.