An alien who gets married to a U.S. citizen is classified as an “immediate relative,” according to the USCIS. There’s no cap on the number of “immediate relatives” who can apply for what’s commonly known as a “green card” for permanent residence, every year. After the paperwork is filed, there’s a waiting period for the paperwork to be processed. The processing period is where tricky status issues can come into play.
For example, a U.S. based alien can’t automatically count on receiving an “adjustment of status.” In fact, they might be required to leave the U.S. and apply for their permanent resident status, also known as a “green card” via a U.S. consulate located in their home country. However, if the alien is able to apply for their “green card” in the U.S., then this is a very advantageous route. For starters, they won’t have to worry about being separated from their U.S. spouse. They’ll also be able to receive an work permit once they’ve turned in their application at the USCIS, and their paperwork moves to “pending” status. To learn more about the requirements for family-based permanent resident/green card status; or for more information on the adjustment of status process, review:
How to Complete “Adjustment of Status”
Furthermore, since they’ll have their U.S. spouse on hand, they’ll receive the moral support that they may need, along with financial support. And, the married couple has the right to bring their immigration attorney to their appointments. This is a crucial benefit for couples who may be facing legal complications, such as a previous criminal conviction. Whether or not the alien can be granted an adjustment of status depends upon whether or not they’ve entered the U.S. lawfully, or unlawfully.
How Legal Or Illegal Entry Affects The Adjust Status Process
First, it must be determined whether or not the alien in question entered the U.S. legally, or not. One determining factor is if they applied for a visa before entering the country. More to the point, the alien must have applied for a visa for honest reasons, such as attending school or working in the country on a temporary basis. If the alien is found to have applied for a visa simply to use it as a bridge towards immigration, then they’ll be labeled as using their visa status fraudulently, and they could be denied an adjustment status. However, if the alien is deemed to have entered the country legally, then their “green card” application process should run smoothly, although the entire process could take up to a year.
Lawful Entry at a Glance:
- They’ve applied for a tourist, student, or temporary worker visa.
- They’ve entered with a border crossing card
- They’ve entered under the Visa Waiver Program (Applicable to travelers from certain countries, under certain circumstances)
When Then Alien Enters The U.S. Legally
When an alien enters the U.S. legally, they’ll have a lot of advantages at their disposal, especially if their spouse is a U.S. citizen. In this instance, they’ll be able to apply for an adjustment of status without the need to leave the U.S. during their “green card” application processing.
If the alien doesn’t have to select the adjustment of status procedure. They can opt and apply for their “green card” overseas at a U.S. consulate. Some people like this option because the process works faster than applying for a “green card” in the U.S. However, this isn’t an option for those who have allowed their visa to run out while staying in the U.S. Staying in the U.S. after one’s visa has expired could lead to a long bar on re-entry into the U.S.
Overstaying a Visa
If the alien is caught overstaying their visa, or if it’s been determined that the alien has obtained their visa for the fraudulent purpose of staying in the U.S., then they could face deportation along with a three to 10-year ban on entering the U.S. An example of visa fraud includes an alien obtaining a visa while planning a wedding in the U.S. The USCIS becomes very suspicious of aliens who knew their U.S. spouse previously and applied for a temporary visa before entering the country. Instances such as these raise “red flags” in the “green card” application process.
Unless the alien applies for and is approved for a fiance visa (K visa), they’ll have to fill out additional paperwork that requires them to ask for forgiveness of their visa fraud. The exception is if the alien met their U.S. spouse after they arrived in the country.
Lawful Entry Of Aliens Via The Visa Waiver Program
Some qualifying aliens are allowed to enter the U.S. via the Visa Waiver Program. However, this is based upon the premonition that Visa Waiver Program (VWP) aliens aren’t allowed to change or adjust their legal status. Certain jurisdictions allow for the application of the adjustment to status only within the original 90-day period of the alient’s VWP entry. The best bet to determine qualifications is to consult with an immigration attorney.
Unlawful Entry into the U.S.
The alien who enters or has entered the U.S. via unlawful means (such as sneaking across the border) loses a lot of legal protections and advantages. For starters, they won’t be able to apply for a “green card” without leaving the U.S. In addition to being forced to leave the U.S. if the alien applies for a “green card” at a U.S. consulate abroad, the application could be refused. The alien’s application will be labeled as “inadmissible”, depending upon how long the alien illegally stayed in the U.S. However, the previously illegal alien can apply for a waiver if they can prove that any denial would could an extreme hardship to the U.S. relative in question.
This can be handled on a provisional basis using the Form I-601a before leaving the U.S. But, some applicants will need to leave the country before applying for the waiver. For comprehensive information on I-601A waivers, visit:
If an alien started their “green card” application process before “Section 245 (i)” of the law changed, then they could be eligible for an adjustment of status change.
The alien could take advantage of this if a relative or a prospective employer filed a PERM labor certification or a visa application on their behalf either:
- Before January 14, 1998, or
- Between January 14, 1998 and April 30, 2001 if the applicant can prove that he or she was physically present in the U.S. on December 21, 2000.
Due to all of the possible complications that come with taking advantage of this law, it’s best to leave the particulars to an immigration lawyer. They’ll help you to determine whether or not you’d qualify for this provision.
Obtaining A Marriage-Based “Green Card”
Receiving a marriage-based “green card” typically involves a two-step process. First, the U.S. spouse must submit a Form I-130 informing the USCIS that they’d like to help the alien to immigrate. After approval, the alien can apply for their permanent residency. But, if the alien spouse of a U.S. citizen is eligible for an adjustment of status, then they can file their I-130 petition and their “green card” application concurrently.
Months later, a USCIS official with call in the alien for a biometrics appointment. This involves the alien surrendering fingerprints, and a photo. After this, the USCIS will recall the married couple for a personal interview. They’ll be required to answer questions regarding the sincerity of the marriage and any other questions required for “green card” processing.
If all goes well, then the alien’s permanent residency should be approved at this final interview. They’ll receive their actual “green card” by mail in a few weeks after the interview.
Consultations Are Available!
If you are interested in pursuing a family-based green card for yourself or, are looking to sponsor a relative who qualifies – call Pride Immigration Law Firm PLLC today. We offer consultations with experienced immigration attorneys who can help you understand your best option before making a decision. Send us a description of your case online to learn more about how we can help you successfully reach your goals.
Beeraj Patel, Esq.
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