Can the spouse of a Legal Permanent Resident stay in the United States while his or her petition is pending?

No. A spouse of a Legal Permanent Resident must remain in active visa status while his or her petition is pending. If the spouse falls out of legal status for more than 180 days while in the United States, a three year penalty against receiving any visa will be imposed. If the spouse falls out of legal status for more than one year while in the United States, the penalty increases to 10 years. The spouse of a Legal Permanent Resident is not eligible for waivers of the 3 / 10 unlawful presence bars, which can forgive unlawful presence out of legal visa status for the spouses of U.S. Citizens. In cases where the Legal Permanent Resident becomes a U.S. Citizen during the course of the petition process for his or her spouse, the petition can be upgraded to a spouse petition of a U.S. Citizen, which may allow the foreign spouse to remain in the United States during processing or to qualify for a waiver of the 3/ 10 unlawful presence bars in cases where he or she has entered the United States without a visa and must return to the home consulate to complete processing.

BACK IMMIGRATION FAQs