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Immigration 101: Why Marrying a US Citizen Does Not Automatically Legalize an Undocumented Immigrant

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One immigration case that’s been making the news is the story of Roberto Beristain, an Indiana business owner and undocumented immigrant who was deported this week after spending almost 20 years in the US. Beristain has a wife and four children, all of whom are US citizens, which might prompt some to question — why didn’t Beristain become a US citizen? After marrying a US citizen, you automatically become one, right?


Obtaining legal status by marrying a US citizen: long, arduous, expensive

Undocumented immigrants do not automatically become naturalized after marrying a US citizen; they must go through an application process that is long, arduous, and expensive. Many immigrant-citizen couples (we also call them “mixed-status families”) choose to not go through the process due to the complications and dangers that lurk. And that means that the immigrant spouse remains undocumented and subject to deportation at any time.

First off, many families don’t seek to legalize undocumented spouses simply because they cannot afford to. It’s not a process you should undertake by yourself; it’s best to hire an immigration lawyer. And that costs families thousands of dollars in legal fees, assuming that they manage to stay away from “notarios” — scammers who pretend to provide immigration assistance but instead take their clients’ money or illegally give bad legal advice.

If the family does attempt to undergo the process, there’s no guarantee that they will succeed and be able to put the undocumented spouse on the path toward legal status. The documented spouse (a US citizen or legal permanent resident) begins by sponsoring his or her undocumented partner for a green card. If the undocumented partner did not originally enter the US legally, he or she must then return to his or her home country for a screening at a US consulate.

The 10-year-bar and the hardship waiver

Here’s where things get really hairy. An undocumented immigrant who leaves the US after being here without status for more than a year is automatically barred from returning, typically for 10 years. They can get around this by applying for a hardship waiver, where the US citizen (or permanent resident) spouse must demonstrate that not having the undocumented husband or wife around would be an extreme hardship — beyond the pain of separation. Many aren’t eligible for this waiver: if the undocumented person entered the US more than once he or she may be subject to the “permanent bar”. Minor charges such as marijuana possession or working with false papers may also derail an application.

Before 2012, this ban-and-waiver process was a truly cruel catch-22, because an undocumented person could only apply for a waiver after they had left the country, been barred, and were living outside United States. That meant that an undocumented person who wanted to apply for legal status through marriage would have had to leave the country before knowing whether they would be able to return. If the hardship waiver was denied, the undocumented spouse would be stuck outside the US for as much as ten years, separated from his or her family and with few legal options.

President Obama eased that harsh rule a bit in 2012, allowing families to apply for the hardship waiver while the undocumented spouse was still in the US. But that still means that an undocumented spouse must qualify for a hardship waiver if they want to legalize their status through marriage. It also means that there can be no other infractions that bar a green card, such as minor misdemeanor offenses. No hardship waiver, no ability to return to the US.

Furthermore, the denial of a hardship waiver would mean exposure of undocumented status to the US government — something that would leave immigrants feeling very vulnerable in the age of Trump. This month, five undocumented immigrants who had no criminal record went to a US Citizenship and Immigration Services office in Lawrence, Massachusetts to try and apply for green cards through marriage — and were promptly picked up by immigration enforcement. It’s understandable why many mixed-status families wouldn’t want to take that risk. The alternative is to stay undocumented and remain in danger of deportation at any time — but the legal status by marriage route isn’t an easy solution, either.

Roberto Beristain and why marrying a US citizen isn’t protection from deportation

In Roberto Beristain’s case, he and his family have spent the last 18 years trying to obtain legal status, only to be told that legislative immigration reform would be the only solution. In 2000, Beristain crossed Immigration and Customs Enforcement (ICE)’s radar when he made a wrong turn during a Niagara Falls trip and was briefly detained at the US-Canada border. That resulted in a voluntary self-deportation order, which meant that Beristain was supposed to leave the country within 60 days. His wife was pregnant at the time, so he decided to remain. But the self-deportation order likely would have disqualified Beristain from a hardship waiver, leaving him unable to adjust his status and become a legal resident — despite marrying a US citizen.  And he couldn’t simply apply for a green card at the USCIS office.  The old deportation order made it impossible for USCIS to consider his green card application.

Beristain’s case is the latest example of the damage that Trump’s immigration policy is causing. For almost two decades — through three US presidential administrations — ICE declined to forcibly remove him, allowing Beristain to simply drop by for annual check-ins. He was allowed to obtain a driver’s license, social security card, and work permit. He bought a small restaurant business that employed 20 people. He had four children and contributed to a conservative, small-town community that loved him. His wife voted for Trump, believing that there was no cause to remove someone like her husband. But in February, Beristain was abruptly detained during his annual check-in — his first check in under a president who has apparently made it a policy to remove all undocumented immigrants, regardless of how long they’ve been in the US or how much of a model citizen they’ve been. He was deported two months later.

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