Is it true that we can’t get married because my fiance didn’t come to the US on a visa?

My boyfriend is from El Salvador and I’m from Puerto Rico. We are both 20 years and we also have a baby. We’ve been together 3 years. The thing is that we want to marry and we don’t know if he can do the papers after we get married. He didn’t came with a visa to the US. Can we still get married and do the papers without him being deported? Is it true that we can’t get married because he didn’t come with visa?

Asked on October 19, 2011 under Immigration Law, New Jersey

Answers:

SB, Member, California / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If he entered the US unlawfully, he is not eligible to adjust status to permanent residence within the US.  He would have to leave the US and go back to El Salvador, but as soon as he departs the US, he will automatically trigger a 10 year bar to reentry, which can only be waived by a showing of extreme hardship to a US citizen spouse, and this is fairly difficult to do in most cases.  If he was every petitioned by a relative or an employer, he may be grandfathered under 245i but you would need to provide more information in order to determine if this is the case or not.  As for deportation, while he is in the US and is in the US unlawfully, he is always subject to deportation.  It does not mean you cannot get married; you can.  It just means that he may not be able to legalize his status here.


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