Married to an American and Still Undocumented

Many of Griselda’s friends thought the wedding would lead to a green card. (Photo: Flickr/stevenzwerink)

Phoenix, Arizona—When Griselda got married to a U.S. citizen many of her acquaintances thought she would immediately get her “immigration papers.”

But things were a bit more complicated than that.

After getting married, a legal path opened for her to one day become a citizen. But because she entered the country illegally, she needed to go back to Mexico and apply for a green card there. Under immigration law, however, leaving would mean being barred for 10 years for having entered the country illegally.

The solution is a waiver, but getting it once someone leaves the U.S. is not guaranteed, and waiting for it could take years, according to immigration attorneys.

She decided not to risk it.

It’s been 13 years; Griselda is happily married and still an undocumented immigrant. Now she has two children born in Arizona and the prospect of being separated from them makes her live a cautious life.

Griselda’s situation is not unique, other couples of mixed-immigration status face the same challenge.

But an upcoming change to immigration rules, that could be announced before the end of the year by the Office of Citizenship and Immigration Services (USCIS), could be night and day for her.

The proposed rule doesn’t change who is eligible for a green card, but it could allow the spouse of a U.S. citizen that is undocumented to apply for a waiver to the 10-year-bar without having to leave the country. They could wait for an answer on the waiver on this side of the border, but would still have to travel to their country of origin for a final interview at an embassy or consulate which is part of the process.

The proposed change was open to public comments on April 2012 by the Department of Homeland Security which is in the process of considering all the input they receive before issuing a final ruling.

“This is a tiny candle that has lit, but for me is huge,” Griselda said

USCIS is expected to publish the rule before the end of the year, said Bob Deasy, director of liaison and information for the American Immigration Lawyers Association (AILA).

“They’ll still have to leave (to apply for a green card in their country of origin) but the waiver will be approved before they go,” said Deasy.

For those people who entered the U.S. with a visa that expired, the situation is different, because immigration law allows them to apply for what is called “adjustment of status” without having to leave the country. If they were to leave they would still face a 10-year-bar under the Immigration and Nationality Act (INA) for having stayed in the country unlawfully for more than a year.

This provision of federal immigration law shows some of the complexities of the system and explains why so many people with the potential of legalizing their status like Griselda don’t do it, concerned about the hurdles and the time.

“What if I leave to apply and they say no. I would be separated from my children and my husband, and I’m sure it won’t be easy for them to come and see me,” said Griselda, 40. “My kids will be left in a limbo.”

Jose Peñalosa, an immigration attorney in Phoenix explained that the possibility of getting a waiver or exception to the 10-year-bar has always existed but people had to ask for it outside the country, taking the gamble of having it denied.

Under the status quo, “it could take up to 6 months to 2 years for them to get a response on the waiver,” said Peñalosa. “ In the meantime they have to stay outside the U.S.”

Shiu-Ming Cheer, an immigration attorney at the National Immigration Law Center (NILC) warned immigrants that could potentially qualify to be aware of legal advice coming from anyone else besides an attorney.

“It’s going to be a big change that will help a lot of families, but a lot of people may not find out about it,” she said

Griselda is hopeful that a door is opening into her future. If she qualifies, she would be able to learn how to drive, take her children to school, live without the constant fear of what would happen if the police stop her. In Arizona, this is not uncommon after the passage of SB 1070 a law that makes it mandatory for police to contact immigration authorities if they suspect someone is in the country illegally.

“A while back I didn’t mind not having papers,” she said. “My dad died and they buried him in Mexico. My mom is still alive, but I’m interested in this for two reason: one in case they detain me and try to send me to Mexico, the other is because I want to see my mother and she can’t come here,” she said.

Fi2W is supported by the New York Community Trust and the John S. and James L. Knight Foundation with additional support from the Ralph E. Odgen Foundation and the Sirus Fund.