Friday, October 1, 2010

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card Cont’d – Living in the U.S. and Married to a LPR

I have used the last three postings of the Seattle Immigration Lawyer Blog to discuss this popular topic and after this current posting it will be time to move on. In this last scenario, if the immigrant spouse is living in the U.S. and married to a U.S. LPR, the LPR files the visa petition with USCIS, which goes into the now familiar “lockbox.” When the immigrant spouse’s priority date is current, or close to that time, the petition will hopefully be approved.

But, here is where it really gets ugly. The immigrant spouse living in the U.S. who is married to a U.S. LPR may be trapped because the only way he or she can stay in the U.S. and adjust status (apply for a green card) is if he or she has been in status, that is legally living in the U.S., this whole time, and not working illegally. (There is an exception if you started the process when earlier laws governed. As always, you should consult with an experienced immigration attorney to determine if any exceptions apply to you.)

As an immigration lawyer, and simply as a person with at least some common sense, I think this is quite frankly, unfair. After all, it could take years before your priority date is current. (Or not, it depends on the backlog. As of Sept. 2010, the priority date for 2A was 1/1/2010. But, for example, just last year there was a backlog of around 5 years.) One option is to leave the U.S. before staying illegally for 6 months, wait for the priority date to become current and go through the consular processing system abroad.

However, as is often the case, the spouse has been living out of status in the U.S., which could trigger a bar on re-entry to the U.S. (there are various bars, the main two are: 3 year bar for those unlawfully present for 180 days after 4/1/97; 10 year bar for those unlawfully present for 365 days after 4/1/97).

Another option would be to stay in the U.S., out of status, and hope to adjust status once the priority date is current, but the immigrant spouse would be vulnerable to removal the whole time, which is not a pleasant way to live, and, of course, illegal.

Yet another option would be to leave the U.S. after staying longer than 6 months out of status, but less than a year, so the 3 year inadmissibility bar applies but not the 10 year. Whether this is crazy or not depends on the waiting period, and the processing times for your consulate.

Of course, ideally, the U.S. LPR spouse will become naturalized, which will allow you to upgrade the application and do away with the “lockbox”. I can’t think of a good reason to wait until your U.S. LPR spouse is a citizen before filing the green card application. If your spouse becomes a citizen, that’s wonderful, you can upgrade the petition then, but you might as well get in line right away.

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