Each year in California, many foreign-born individuals wonder if they can apply for and receive a marriage-based visa before wedding a U.S. citizen. Marriage-based visas are available in many circumstances for people whose unions are legally valid.
Immigration law treats different categories of immigrants differently when deciding whether to grant marriage-based visas. For those who previously entered the United States legally and were subjected to inspection by a border patrol agent, the process is fairly straightforward. For those who entered illegally, the process is much more difficult.
People who entered legally but then overstayed their visa should apply for a marriage-based visa as soon as they have married in order to receive an adjustment of status. This category of people is most often able to be granted an adjustment. They should not leave the United States during the process, however, as they will be forced to remain outside for three to 10 years if they have overstayed by more than six months since 1997. Those that entered illegally may sometimes be able to obtain a marriage-based visa. If they have been previously deported, however, they will be permanently barred from the United States. People whose prior visa applications were denied due to an agency error may be eligible for an adjustment of status.
Certain categories of immigrants who entered illegally are eligible for marriage-based visas, but the proof required can be complicated. People who are currently illegal in the United States but who plan to marry may benefit by meeting with family immigration attorneys to find out about their options. An attorney may be able to appropriately advise an individual and their future spouse on how to best go about obtaining legal status in order to avoid splitting up families due to immigration status.
Source: Immihelp, "Marriage Based Green Card for Persons Already in the U.S.", October 21, 2014