Filing for a Marriage-Based Green Card When You’re “Out of Status”

1. Why “Illegal” Does Not Always Mean “Impossible”

Being in the United States without valid immigration status—whether you over‑stayed a visa or entered without inspection (EWI)—can feel overwhelming. The good news is that U.S. immigration law carves out several lifelines for spouses of U.S. citizens and, in some cases, green‑card holders. Knowing which path fits your situation is the key to filing confidently.

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2. Two Main Scenarios & Which Rules Apply

Your Current Situation	Typical Path to a Green Card	Key Points
Entered legally (visa/ESTA) but overstayed	Concurrent I‑130 + I‑485 (adjustment of status) filed inside the U.S.	Overstays and even unauthorized work are forgiven for immediate relatives of U.S. citizens under INA §245(c)(2).
Entered without inspection (EWI) or parole	Consular processing + I‑601A “provisional waiver” of the 3‑/10‑year unlawful‑presence bar	You usually leave the U.S. for your visa interview, but the waiver lets you wait for approval while still in the U.S., reducing family separation.

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3. Step‑by‑Step Roadmaps

A. You entered legally & overstayed

1. Gather evidence of a bona‑fide marriage (joint lease, taxes, photos, children’s birth certificates).
2. File Form I‑130 (Petition for Alien Relative) + Form I‑485 (Adjustment of Status) together (“one‑step”).
3. Attend biometrics (fingerprints) and medical exam (I‑693).
4. Interview at your local USCIS field office.
5. Receive your green card in the mail—typically 10–15 months in 2025, though some cases are faster.

What about work & travel while you wait? File I‑765 (work permit) and I‑131 (advance parole) with your I‑485. Approval averages 4–6 months.

B. You entered without inspection (EWI)

1. File I‑130 first; wait for USCIS approval.
2. Pay National Visa Center (NVC) fees and submit civil documents + the Affidavit of Support (I‑864).
3. File Form I‑601A to request a provisional waiver of unlawful presence.
4. After waiver approval, schedule your visa interview at the U.S. consulate in your home country.
5. Attend interview, then return to the U.S. with your immigrant visa—green card mailed within weeks.

Tip: Approval odds for the I‑601A hinge on documenting “extreme hardship” to your U.S.‑citizen spouse. Think medical needs, financial dependence, or emotional/psychological stakes.

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4. 2025 Form‑Edition Alerts (Don’t Get Rejected!)

• I‑485 and I‑601A: USCIS now accepts only the 01/20/25 edition; older versions are rejected outright.
• Always download directly from USCIS.gov on the day you file to avoid surprises.

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5. Costs & Typical Timeline (2025)

Item	Inside‑U.S. Adjustment	Consular + I‑601A
Filing fees*	$1,440 (I‑485) + $535 (I‑130)	$535 (I‑130) + $1,440 (consular fee pack) + $715 (I‑601A)
Medical exam	$250–$500	Same
Attorney / preparer (optional)	Varies	Varies
Total wait	10–18 months	18–30 months (waiver adds ~12 months)

*Fees current as of July 2025; USCIS fee‑hike proposal still pending final rule.

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6. Real‑World Examples

Couple	Status Problem	Outcome
Ana & Mark – Ana overstayed ESTA by 2 years	One‑step I‑130/I‑485; work permit in 5 months; green card in 13 months.	Overstay forgiven (immediate relative).
Carlos & Mia – Carlos crossed border 10 years ago	I‑601A approved on hardship (Mia’s medical condition); consular interview in 19 months; green card on return.	3‑year bar waived before departure.

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7. Common Fears, Calm Answers

• “Will filing alert ICE?” – USCIS does not share routine adjustment filings with ICE unless there is a serious criminal concern.
• “Can I keep working?” – Over‑stayers married to U.S. citizens may apply for a work permit with the I‑485; unauthorized past work is excused.
• “What if we can’t prove hardship?” – You can submit more evidence, seek legal review, or explore other eligibility options if applicable.
• “Could we be separated for years?” – With a provisional waiver, most couples spend only a few weeks abroad—sometimes as little as seven days.

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8. Next Steps

1. Identify your scenario (overstay vs. EWI).
2. Download the latest forms from USCIS—or let GreenGuard auto‑fill them for you.
3. Compile relationship & hardship evidence.
4. File your packet with confidence that you’re on the right legal track.

Remember: thousands of couples have successfully turned an “illegal” stay into lawful permanent residence. With the right plan—and the right tools—you can too.