ONE traditional way of obtaining permanent residency for most immigrants is through a petition by a U.S. citizen spouse.
As a spouse of a U.S. Citizen, an alien is considered an immediate relative and entitled to immediately apply for a green card inside the United States. This is usually done by simultaneously filing an I-130 Petition for Alien Relative and an I-485 Application to adjust status. However in order to do this, the alien spouse must have been inspected when the alien entered the United States or if not inspected must be grandfathered by section 245(i) of the immigration and nationality act. Being inspected means that the alien entered using a valid visa, paroled inside the United States, entered using the visa waiver program. The alien is grandfathered by section 245(i) if a family petition or a labor certification has been filed for the benefit of that alien prior to April 30, 2001. If the alien was not inspected nor grandfathered under section 245(i), such as if the alien crossed the border illegally, the alien cannot obtain his or her green card inside the United States. Then it becomes a catch 22 situation because if the alien spouse leave the US, the alien spouse becomes subject to the 3/10 year unlawful presence bar. The alien spouse may apply for a provisional waiver of the 3/10 year bar inside the U.S. which will give the alien spouse some assurance that he or she may be able to come back the U.S. if he or she interviews at the U.S. embassy overseas for the immigrant visa.
Along with the application and petition, the alien is also required to take a medical examination by a physician designated by the USCIS. The result of that physical examination is reported in a USCIS form and sealed in an envelope submitted with the Petition and Adjustment Application.
The alien spouse may also apply for a work authorization card with the Petition and Adjustment application. The work authorization card will allow the alien spouse to work legally in the United States, obtain a social security card, and a driver’s license while that person is waiting for his or her green card interview. Work Authorization card are usually issued in about 1 to 2 months from filing the application.
The green card interview is usually set in about 5 to 6 months from the time the Petition and Application is filed. The green card interview is the most important step in the process. It is through this process that the USCIS officer usually determines whether the marriage, which forms the basis of the Petition, was entered in good faith. The adjudicating officer usually asks detailed questions about the marriage relationship between the U.S. Citizen spouse and alien spouse. If the couple do not have children, the marriage are usually subject to closer scrutiny. Along with this inquiry process, the USCIS would usually request for certain documents that proves a bonafide marriage. Some of these documents may be in the form of pictures, joint utility bills, health insurance documents, and many more. If everything goes well, the USCIS officer will approve the case and a green card will be mailed to the alien’ address within a reasonable time period. If the couple has been married for 2 years or more, the alien spouse will receive a permanent greencard. If the couple has been married for less than 2 years, the alien will receive a conditional green card. The alien spouse will have to file a petition to remove the condition 3 months prior to the expiration of the conditional greencard which is good for 2 years.
Obtaining legal status in the United States is a one shot deal. People should seek the assistance of an experienced Attorney to guide them through this important and and once in a lifetime process.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC This article is not a solicitation.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APLC. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]. Web: kenreyeslaw.com.