Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card Continued – Living Abroad and Married to U.S. LPR

As any decent immigration lawyer will tell you, it’s easier to get your green card if you are married to a U.S. citizen rather than a U.S. lawful permanent resident. But, in writing my immigration lawyer posts on obtaining a green card, I want to cover as many options as possible. So, in the case of an immigrant living outside of the U.S. who is married to a U.S. lawful permanent resident (LPR) spouse, as usual, the U.S. spouse starts the process by mailing the visa petition (I-130) to USCIS.

Now, here comes the bad part. A visa petition from a U.S. LPR spouse goes into the USCIS so-called “lockbox”, which will eventually pass it along to the USCIS office for the U.S. LPR’s location. But the petition will stay “locked up” until close to the date that the immigrant spouse’s priority date is current.

So, what’s a priority date? Well, a priority date is the date that your relative, in this case, your loving spouse, started your immigrant process by filing a petition on your behalf. (As with any time you submit immigration documents to the federal government, you should ALWAYS send them registered mail return receipt requested, or express mail or similar with receipt confirmation. The date on the confirmation receipt is the priority date!)

To determine when your priority date is current you, or your immigration attorney, will have to look at and keep checking on the infamous Visa Bulletins, which are published every month by the State Department, and are available online. The bulletins state the immigrant visa cutoff date for each visa preference. Spouses of U.S. LPRs are 2nd preference (2A). The cutoff dates simply indicate which priority dates in each preference category are being processed by the State Dept. since immigrants with those dates are now eligible for an immigrant visa. For example, for Sept. 2010, for preference 2A, the cutoff date is 1/1/2010. That means that if your priority date is before 1/1/2010 than you will receive an appointment in the next few months if you are an immigrant living abroad, or if you’re in the U.S., you’ll be able to submit the next part of your application. If your priority date is, for example, 2/1/2010, then you will have to keep waiting.

Now, back to the petition being “locked up”. Hopefully, USCIS will approve the visa petition. Only when the petition is approved and the priority date is current can the immigrant spouse apply for lawful permanent residence through the consular processing system. At the consulate interview, with any luck, the immigrant visa will be approved and the immigrant spouse must go to the U.S. and claim permanent residence within six months. Unfortunately, the immigrant spouse has to wait outside of the U.S. until the consular processing is through. That means waiting until the priority date is current and you have your interview. That could take years depending on the backlog. As always, you should consult with an experienced immigration attorney for details on your specific circumstances.

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card, Continued - Living Abroad and Married to U.S. Citizen

In the case of an immigrant living abroad who is married to a U.S. citizen there are two possible routes to getting a green card. First, the traditional method is for the U.S. citizen spouse to file the visa petition (I-130) with USCIS. Assuming USCIS approves the petition, the immigrant will go through consular processing abroad. Hopefully, the immigrant spouse will be approved for the visa, which he or she must use within 6 months to go to the U.S. and claim permanent residence, or conditional residence. This process typically takes at least a year.

Second, there is an alternative, more expensive option that is sometimes faster, depending on the speed of the particular USCIS processing office. (You should consult with an immigration attorney in making this decision.) The U.S. citizen spouse can send in the visa petition to USCIS and once he or she receives a receipt notice from USCIS, the U.S. citizen spouse can file a separate fiancé visa petition (Form I-129F). Yes, you read that right. A fiancé visa petition, even though you are already married. Once USCIS approves the fiancé petition, the immigrant spouse then proceeds through the consular processing system abroad. At the consular interview, the consulate will hopefully approve the immigrant for a fiancé visa (K-3). The immigrant spouse can travel to the U.S. using the K-3 and once in the U.S. can file for adjustment of status with USCIS. Following what will be at least several months of waiting, both spouses will attend an interview and hopefully the immigrant will be approved for permanent residence. Whichever route you decide to take, an experienced immigration lawyer can guide you through the process and minimize administrative delays.

Stay tuned for my next article, which will cover how to obtain a green card for an immigrant living in the U.S. who is married to a U.S. LPR, and for an immigrant living abroad who is married to a U.S. LPR.

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card

In my last two Seattle immigration lawyer posts, I wrote about the asylum route to a green card. A more common path to obtaining a green card is through marriage to a U.S. citizen or a U.S. green card holder (officially called a lawful permanent resident, which is known in immigration lingo as an “LPR”). What follows is only a brief overview of the process but it should provide a taste of what to expect. (You should of course consult with an immigration lawyer regarding your specific situation.) You will see that it is much easier, and, more importantly, much faster, if the petitioning spouse is a U.S. citizen. This is because there is no waiting period for immediate relatives of U.S. citizens (which include spouses, parents, and unmarried children under 21).

Before I run through a few scenarios to describe the process, you should know that some immigrants are simply not eligible for adjustment of status (becoming a permanent residence). In a future article, I will discuss some of the grounds for inadmissibility and whether waivers exist for them. For now, readers should be aware that there are a plethora of these grounds, some obvious, such as if your last entry to the U.S. was illegal, and others less obvious, and you will want to figure out if one applies to you. If one does, you’ll definitely want to consult with an experienced immigration attorney about your particular case.

Regardless of your situation, the U.S. citizen or LPR spouse will need to prepare the visa petition. This includes: the Form I-130, Petition for Alien Relative; Form G-325A, Biographic Information (one form for each spouse); photos of the petitioner (U.S. citizen or LPR) and beneficiary (immigrant); proof that petitioner is U.S. citizen or LPR; proof of a valid marriage, including a marriage certificate, and if there’s a previous marriage for either spouse proof that it was terminated; and filing fee of $355.

Living In U.S. & Married to U.S. Citizen

Now, in the case of an immigrant already living in the U.S. and married to a U.S. citizen, the U.S. citizen, as in all of these cases, starts the ball rolling. In this situation, the U.S. citizen submits the visa petition (see I-130 and other documents above) simultaneously with the immigrant spouse’s permanent resident application (Form I-485). Note that I-485 is filed at a different location than the I-130, so read the instructions! (Reading the instructions for any immigration form is a must, along with making sure that you have the most up to date version.) The I-485 will include, among other documentation, a medical report and an affidavit of support (Form I-864).

Once USCIS receives the I-130 and I-485, the immigrant will receive a fingerprint appointment notice, and then an interview appointment notice. Since both the U.S. citizen and immigrant spouse are in the U.S. in this scenario, both must be at the interview. The key issue at the interview is proving that the marriage is not a sham. The intricacies of proving a bona fide marriage will be the subject of a future article. Hopefully, the application for permanent residence will be granted at the interview. (Note that a conditional residence will be granted if the marriage has been for less than 2 years by the time the interview occurs.)

Stay tuned for my next article that will cover how to get a green card for an immigrant living abroad who is married to a U.S. citizen.

Seattle Immigration Lawyer | Asylum Basics Continued, Referral to Immigration Court or Granted

If Your Asylum Case is Referred to the Immigration Court:

First, to be clear, a referral to the Immigration Court is not a denial. It means that the asylum officer could not approve your case. If your case is referred, you will receive a letter of explanation from USCIS and a notice to appear in court. The Immigration Judge will independently review your application and is not required to follow the decision made by the USCIS. It is crucial that you attend the hearing and highly recommended that you obtain an experienced immigration attorney to represent you, if you have not done so by this point already. (If you miss the hearing it could be held in your absence and the judge could order your deportation. Also, with limited exceptions, you cannot apply for a green card for 5 years from the hearing that you missed.) If the judge rules against you, you can appeal to the Board of Immigration Appeals and from there you may be able to appeal to the federal Court of Appeals.

If Your Asylum Case is Granted:

If your asylum application is granted, you can immediately petition to bring your spouse and any unmarried minor children (under 21) you may have still in your home country to the U.S. You will need to use Form I-730, Refugee/Asylee Relative Petition to do this.

After waiting one year following approval of your asylum application, you and your family can apply for green cards (lawful permanent residence). You will qualify for a green card if: (1) you have physically stayed in the U.S. for one year full year after being granted asylum; (2) you continue to be an asylee, or spouse or child of one (meaning that country conditions have not substantially changed); and, (3) you have not violated certain U.S. criminal laws.

As soon as your asylum claim is granted you may also apply for work authorization and a social security card. (If 150 days has passed since you filed your asylum application and the decision is still pending, you may also apply for work authorization.) You will need Form I-765, Application for Employment for this.

I hope that you found this overview of the asylum process informative. If you think you have a potential asylum claim you should discuss your case with an experienced immigration attorney, and beware of the 1-year deadline from when you arrived in the U.S.!

Seattle Immigration Lawyer | Asylum Basics Continued, The Asylum Officer’s Decision

The officer will not make a decision on your case at the interview. Instead, you will receive the decision in the mail at least two weeks after the interview and possibly months after. Depending on the asylum office, you may be told to return to the office at a certain date/time to pick up the decision. Some cases take only a few weeks, while other cases have taken well over a year before a decision is issued. Unfortunately, there is not much that you can do to speed up the process, other than sending a letter inquiring about the status of the decision.

Asylees are often very intimated by asylum officers. After all, the asylum officer has a lot of power for someone who is not a judge. However, in most cases, the asylum officer cannot deny your application. In general, the asylum officer has the power to grant your asylum case or refer your case to an Immigration Court. He or she can also issue a “recommended approval,” if the officer intends to grant the application but there are additional security checks required. Now, if you already have a valid legal status in the U.S., and the officer intends to deny the application, he or she can issue a “notice of intent to deny,” which gives you 16 days to explain in writing either why your claim should be granted and/or submit new evidence to support the claim. If you do not respond within the 16 days, or your response fails to overcome the officer’s reasons for denial, the officer will issue a final denial. Of course, the officer may also grant the application at this point as well.

In my next article I will discuss what happens if the asylum officer refers your case to the Immigration Court, or, as we would hope, if your asylum case is granted.

Seattle Immigration Lawyer | Asylum Basics, Continued

Picking up where I left off last...

The Asylum Interview:

Once the application is filed, you will receive a notice to go the nearest USCIS office for fingerprinting. Next, an asylum interview will be scheduled, in which you and your immigration attorney or other representative will appear and be interviewed by an asylum officer. If you need an interpreter, it is up to you to bring someone who can interpret for you. Also, you are allowed to bring witnesses to give testimony in support of your claim. (Usually, any witnesses will still be in your home country, but if any are here, it certainly would not hurt.)

Asylum interviews typically last at least 1.5 hours and can go for 2.5 hours or more. The purpose of the interview is to test your credibility. The officer will ask you detailed questions about your claim. One of the main ways the officer will do this is by seeing whether your responses are consistent throughout the interview. The officer may accomplish this by asking the same question in different ways and at different times in the interview.

It can be very helpful to have a Seattle immigration attorney at the asylum interview who is very familiar with your case. An immigration attorney may be able to clarify responses you make, point out particular supporting documents in the application to the officer, and maybe even remind you about certain points during the interview that you might forget, since you will most likely be stressed and anxious. The attorney’s level of involvement will be limited by what the asylum officer allows, thus, it will depend largely on the asylum officer’s personal style. However, regardless of the particular asylum officer, your attorney or representative will be able to ask questions at the end of the interview in order to elicit any relevant information that may not have come out during the interview.

Stay tuned for my next article covering the Asylum Officer’s Decision.