Archive for Immediate Relative

I-130 Approval Is Not Green Card!

Posted in Lawful Permanent Residence with tags , , , , , on August 30, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

The I-130 Petition for Alien Relative is probably the most common immigration form filed by people in the U.S. immigration system. A lot of people contact us right after the I-130 petition has just been approved. They’ve been waiting for years and happy. They want to know what they can do to claim their green cards right there and then!

Sorry, we have to tell them. The I-130 approval is a necessary first step for immigrants but does not necessarily entitle them to a green card right away, except for “immediate relatives.” The purpose of the I-130 petition is simply to classify the immigrant as a close relative of the person filing the form to put them into one of the recognized categories of U.S. immigration law. So, when U.S. Citizenship & Immigration Services (USCIS) approves the I-130, it is simply saying in effect: “OK, we find this immigrant is indeed your spouse/son/daughter/sibling as you claim.” That’s all. They’re not saying the immigrant got the green card. Not yet.

Family-Preference Categories

The five family-preference, or relative, categories are:

F1: unmarried sons and daughters 21 and over of U.S. citizens
F2A: spouses and children under 21 of legal permanent residents (green-card holders)
F2B: unmarried sons and daughters 21 and over of legal permanent residents
F3: married sons and daughters 21 and over of U.S. citizens
F4: brothers and sisters of U.S. citizens

In the above, “F” just stands for “Family.” The U.S. citizen or permanent resident filing the I-130 for his or her relative will be referred to as the “petitioner” and the relative(s) will be referred to as “beneficiary” or “beneficiaries.” From the categories listed above, yes, of course you are probably wondering, “What about spouses and children under 21 of U.S. citizens, shouldn’t they be listed somewhere?” The answer is, yes, but not in the five categories above. They are part of a separate and special category called “immediate relatives” that was mentioned. Whereas, the relatives in the categories above are in the “family-preference categories.” F1 has the highest preference and F4 has the lowest preference. Meaning there are generally more visas allocated each year to the higher preferences although every category has a limited number of visas allocated to it each year. Obviously, the F4 category is the slowest category because it has the lowest priority, i.e., the least number of visas available each year for it. Waits of 10 years or more is normal for F4.

Long Waits for I-130 Approval and for Visa Numbers

The problem is that an I-130 filed for a relative in one of these preference categories usually takes years just to be approved. Let’s call this Stage 1: from the time of filing the I-130 until its approval. For example, as of May 31, 2013 (latest data available), it’s taking about 3 1/2 years until approval for an I-130 in the F1 category at the California Service Center (CSC), and almost 1 1/2 years until approval at Vermont Service Center (VSC). For brothers and sisters (F4 category), it’s taking about 3 1/2 years until I-130 approval at CSC and almost 3 years at VSC. These are average processing times reported on the USCIS website; your own petition may be longer or faster. You’d think it’s normally not too difficult to prove that someone is your child or sibling, and you’d be correct, since usually USCIS only asks to see birth certificates (except for marriage cases because of the prevalence of fraud). Yet, they can take that long to get through Stage 1! It is thus not surprising that when they receive the I-130 approval notice from USCIS, the beneficiary and their petitioner feel such happiness that they believe the beneficiary’s green card has been approved or will be soon.

The truth is that, after getting through Stage 1, most of the times the beneficiary still has to endure another wait, sometimes very long. That wait is for a visa number to become available. Let’s call this Stage 2: from I-130 approval until a visa number is available. As mentioned, there are limited number of visas available each year in each category. It’s first-come first-served, so whoever got the I-130 filed for them first will be in line ahead of another person who was petitioned for at a later date. The date that USCIS receives the I-130 is called the “priority date.” This is the date that determines if there is a visa number in your category.

The U.S. Department of State publishes the Visa Bulletin each month which you can use to check what priority dates are current in your category. Once there, click on the link for the current month (or latest month). For example, the August 2013 Visa Bulletin, under the F1 category, shows the cut-off date of “01SEP06” for beneficiaries who are citizens of most countries (that is, not India, China, Mexico, or Philippines, who have their own columns in the Visa Bulletin table — Mexico and Philippines are notoriously slow since there is so much demand for visa numbers from those two countries). This means that currently as of mid-August 2013, only I-130 petitions filed for unmarried sons and daughters 21 and over of U.S. citizens before Sept. 1, 2006 have visa numbers available for most countries.

Example: As an example of the Stage 2 wait for visa number after the I-130 has been approved, let’s say you’re a U.S. citizen petitioning now for your unmarried daughter over 21 (F1 category) from Mexico, so the priority date is in August 2013. Currently, for the August 2013 Visa Bulletin, visa numbers are available in the F1 category for those Mexicans with I-130s filed on or before Sept. 1, 1993 (almost 20 years ago). So, even after the I-130 has been approved, which could take 3 1/2 years for F1 as seen above at California Service Center, your daughter still has to wait for about another 16 years before a visa number is available for her to immigrate. Or, let’s say you’re a U.S. citizen petitioning for your brother now from the Philippines. Looking at the same Bulletin, visa numbers are currently available in the F4 category for those Filipinos with I-130s filed on or before Jan. 8, 1990 (more than 23 years ago!). So, even after the I-130 has been approved, which could take about 3 years for F4 at CSC, your brother still has to wait about 20 more years for a visa number, or to get through Stage 2.

Looking up the Visa Bulletin can only give an estimate as to when a visa number will become available. It is impossible to give a precise answer as to how fast each category will move in the future, especially if your priority date is several years behind. For some months, the visa numbers can move very fast, but then they will slow down, barely moving at all. All one can say is, for example, right now, the August 2013 Visa Bulletin shows that in the F3 category (married sons and daughters of U.S. citizens), the priority cut-off date is 08DEC02″ for most countries, which means only those F3 petitions filed prior to Dec. 8, 2002 have visa numbers, for beneficiaries of most countries. If your priority date is in 2007, for example, then it may take five years, more or less, until there is a visa number available for you.

Note: Sometimes, USCIS takes so long to approve the I-130 due to whatever glitches or problems in the particular case that Stage 1 becomes much longer than it should, so that once the I-130 is approved, the Stage 2 wait for a visa number can be relatively short. In even rarer cases, on the date that a visa number becomes available for the beneficiary’s particular priority date, the I-130 is not even approved yet! That is, Stage 2 and Stage 1 are effectively reversed. In that case, the beneficiary still has to wait until the I-130 is finally approved before they could proceed to Stage 3.

Note: Sorry, but we cannot answer for free questions of the type, “I’m in so-and-so category, with I-130 petition filed on so-and-so date. How long do you think I have to wait?” This blog article was originally written to show people how to use the Visa Bulletin to look the information up themselves and to estimate how long the wait might be in their own cases. Hundreds of people have asked this question on the blog or emailed us when they can do this themselves. It is quite easy to do. As mentioned, using the Visa Bulletin will give you only an estimate of the wait. No one can predict precisely how quickly visa numbers will move in the next few years. Not even USCIS or us lawyers can tell you for sure.

No Benefits While Waiting for Visa Numbers to Be Available: During the wait until a visa number is available, or in Stage 2, the fact that a beneficiary has an I-130 filed for them does not mean that they get any immigration benefit because of that I-130. The same thing during Stage 1. If the person is here in the U.S. in unlawful status, they must take care not to be picked up by USCIS and put into removal (deportation) proceedings.

Also, people ask us this all the time but with only an approved I-130, the person does not get a temporary work permit if a visa number is not yet available. Neither will they get a driver’s license since the DMV will not issue a license unless the person has work authorization in the U.S. or proof of legal status. In other words, if you’re here illegally or you’re out-of-status on your visa, the I-130 by itself does not do anything to make you legal. This is just a false hope. It’s amazing how many of our clients were duped by notarios, non-lawyers, and even bad lawyers who told them otherwise about what the I-130 could do for them.

For example, some immigrants are under the mistaken impression (or given bad advice) that despite the long waits for visa numbers above, as soon as they have an I-130 filed for them and received by USCIS, or receive news of the I-130’s approval, that they can start filing for their green card or to be legal at that moment. There is no such thing. Be careful: filing such application or paperwork too early will, at best, leads to rejection of the application and loss of filing fees, and at worst, may result in removal proceedings if the immigrant is out-of-status or illegal in this country. Unless the immigrant is an immediate relative, there is no shortcut or going around Stage 2 before the next step for the green card can be taken.

What Happens Once Visa Numbers Are Available

However, after the wait when the priority date is finally “current,” meaning that a visa number is finally available, the beneficiary at that point can proceed to the final Stage 3: actually applying for permanent residence or green card status. This stage has three different possibilities:

a. If the beneficiary came to the U.S. originally with a visa or was inspected, is still in status and does not have serious grounds of inadmissibility, he or she can file for adjustment of status in this country, similar to the “easy” boyfriend or girlfriend scenario described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”

b. If the beneficiary came illegally or has been out-of-status (and not an immediate relative), then he or she must go back to the home country and apply at the U.S. consulate, with the 3- or 10-year bar being an obstacle (except for those out-of-status/illegal for 180 days or less), a difficult situation just like the boyfriend or girlfriend that was described in “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?” There is also a category of those who came illegally or who have been out-of-status who can apply for adjustment of status here (and not have to apply in their home country), if they have had certain old petitions filed for them in the past.

c. On the other hand, if the beneficiary is outside the U.S., they will file the immigrant visa package with the U.S. consulate in their country, submit police background and medical checks, among other documents, and then be interviewed at the consulate to receive the immigrant visa (unless if they had spent more than 180 days illegally/out-of-status in the U.S. on a prior stay). With the immigrant visa in hand, they can be admitted to the U.S. as a legal permanent resident.

A very important benefit for these family-preference categories is that the spouse and children under 21 of the main beneficiary are also entitled to immigrate at the same time, and in the same order of priority as him or her when a visa number is available.

Good to Be Immediate Relatives

The exception or shortcut to all the long waiting described above is the category of “immediate relatives” mentioned. This is composed of three subcategories: (1) spouses of U.S. citizens, (2) children under 21 of U.S. citizens, and (3) parents of U.S. citizens when the citizen is at least 21. There are always visa numbers available for these people in unlimited numbers. So, they are highly preferred, or favored, in the U.S. immigration system, much more preferred than those in the five “family-preference categories” above. For an immediate relative, on the date the I-130 is filed, they can skip Stages 1 and 2 and go directly to Stage 3 if they qualify for adjustment of status in the U.S. to green card. If they’re outside the U.S., only Stage 1 (filing of I-130 until approval) has to be waited for, Stage 2 would be zero.

One major advantage for an immediate relative is that both the I-130 petition and the adjustment application are allowed to be filed concurrently, i.e., filed at the same time. Compare that with immigrants in the family-preference categories who must first wait for an I-130 to be approved (go through Stage 1), which could take years as described above, then wait for Stage 2 to complete, and finally proceed to Stage 3 for the adjustment application to green card.

So, to sum it up, if you are someone interested in immigrating to the U.S. and you are not an immediate relative, having a U.S. citizen or legal resident relative file the I-130 for you, despite the long wait for visa numbers, is still good future planning because it reserves your place in the line. We can assist you with filing the I-130 since approval can sometimes be difficult.

Copyright © 2009-2013 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?

Posted in Adjustment of Status, Immigrant Visas, Lawful Permanent Residence, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , , , on August 7, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

In a previous post, “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”, we promised that we would discuss the hard, maybe extremely hard, marriage cases. Well, those are the ones in which the applicant came to this country illegally, the vast majority of times by crossing the border without inspection. There is a huge number of these folks living in the U.S., especially people from Mexico, El Salvador, Guatemala, and sometimes mainland China. That’s not a surprise since the U.S. southern border was and still is to some extent relatively easy to cross without inspection.

It usually comes as a shock when we tell these people that even though they are married to a U.S. citizen, they still must go back to their homeland to obtain final approval to return permanently to this country, unless they had a previous immigrant petition filed for them by April 30, 2001. However, most people simply don’t have the benefit of having a previous petition filed for them, so the green card cannot be approved while they are in the U.S. For example, Mexicans in this situation would have to travel to the U.S. Consulate in Juarez, Mexico, which is just across the border from El Paso, Texas, to be interviewed and obtain approval, a process called “consular processing.”

Just across the border from Texas? No problem, let’s book a ticket…

But wait, not so fast! The problem is, these people had been living in the U.S. illegally for many years prior to departing for their homeland. If at least a year illegally, which is common, then the immigration law imposes a harsh 10-year bar against these people from getting their cases approved if they are now in their country trying to apply to return, even if they have a U.S. citizen spouse and children waiting back in the U.S.! This is perhaps even a bigger shock to people. If more than 180 days to less than a year illegally then they face a 3-year bar from returning, which is still too long.

Note: These bars apply not only to people who came to the U.S. illegally and then leave the U.S. (to apply overseas with or without full knowledge of these bars), but also to those who have been out-of-status on their visas (came legally) and then leave the U.S. before getting a green card (the departure is the key, if no departure then no bar). Also, we get asked all the time whether a child “brought” here by his or her parent “unwillingly” is considered to come here illegally. The answer is yes, there’s no excuse! If the child crossed the border without inspection (illegally) with his or her parents or other people, the child will have the 3- or 10-year bar be an obstacle now, unless he or she leaves the U.S. by the time they turn 18 1/2 and is trying to apply from overseas.

We’ve seen many people made this journey without adequate prior information and legal advice, and now they’re stuck in their country without a way of returning to the U.S. except by entering illegally again. Juarez, Mexico, is used here as an example only. If a person came here illegally from a country much further from the U.S., the journey back to the homeland and then being stuck there because of the bar is a scary prospect! Only if they had been illegal in the U.S. for 180 days or less will there be no bar, but not too many people fall into that category. Also, time living illegally in the U.S. while under 18 does not count.

These bars were put into the law by Congress in 1996. Since then, many of us in the immigration law community have been pushing Congress to get rid of them. We may have some success with the new Obama Administration in the next four years. Meantime, the same law that added these bars does provide a way of overcoming them, and that is through what’s known as the “extreme hardship” waiver. Basically, the applicant has to prove to the immigration officer that the denial of their case (which means no visa issued to enter the U.S.) would result in extreme hardship to his or her spouse or a parent, if the spouse or parent happens to be a U.S. citizen or legal resident.

Extreme hardship is not an easy standard to meet. It is not merely the claim that you will be separated from your spouse and family in the U.S. because every one of these cases involves separation. It is something more, encompassing emotional, psychological, financial, and material hardship that the family will suffer. Documents and evidence must be submitted to demonstrate these hardships. For a realistic chance for the waiver to succeed, all the evidence should be marshaled and put together by an immigration attorney experienced in this type of matter. Otherwise, it will be too easy for the consular officer to deny the waiver.

To make it clear, the 3- and 10-year bars do not take effect if the person never leaves the U.S. However, if they remain here, they cannot become legalized under current law if they are not immediate relatives. There is no way to get their papers here! People continue to ask us if there is a way but no, there is absolutely no way to do it while remaining in the U.S., we cannot do magic if it’s not within current law. It’s the person’s choice, of course, to go or to stay. Going will lead to possible approval by the consulate overseas for permanent residence at a considerable risk, while staying will lead to the same old same old of being illegal in the U.S. and not having any papers. It’s really almost a Catch-22 situation for immigrants.

2013 update:  For certain applicants who are immediate relatives and who are already in the U.S., a new “provisional waiver” has been available since March 4, 2013, where the applicant can apply for the waiver here rather than being forced to apply only in their home country.  Thus, the Catch-22 situation is eliminated for these applicants.  However, the applicant has to have a spouse or parent who’s a US citizen or has a green card in order to qualify for this provisional waiver.

When you search the internet for information on green card through marriage, be careful of sites that discuss how the immigrant spouse can file for “adjustment of status,” “adjustment,” or “Form I-485” without even mentioning these bars. “Adjustment of status” is the process of filing for the green card here in the U.S. without having to leave. It simply is not possible if the immigrant came illegally and is now relying on a petition filed after April 30, 2001!

The only exception for the immigrant spouse who came illegally to the U.S. is if he or she had a previous immigrant petition filed for them prior to or on April 30, 2001. This could have been a family I-130 petition filed for them by a relative or former relative who was a U.S. citizen or legal resident, or even a labor certification or employment petition filed for them by an employer offering a permanent job. If that is the case, the good news is that the person does NOT have to travel to the U.S. consulate to get their green card but can adjust their status here. This is the famous 245i law that many immigrants have heard about. They would fall into the “easy” cases described in our previous article. An extra $1,000 penalty is necessary in addition to regular filing fees, but that’s a whole lot better than having to leave the U.S. and be confronted with the 3- or 10-year bar!

Update: A lot of people married to US citizens (or planning to marry) have sent us comments and questions after reading this article, who arrived in the U.S. with a visa or otherwise inspected upon entry, and are worried now that they have been out-of-status for so long. Please note that the article you just read is not applicable to you but to those who crossed the border illegally. Your situation is described in the previous article “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?” As explained there, even if you have been out-of-status for many years, that violation is forgiven if your citizen spouse is going to petition for you for the green card. The 10-year bar will not apply to you unless you make the mistake of leaving the U.S. for whatever reason before receiving the green card.

Copyright © 2009-2013 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?

Posted in Adjustment of Status, Lawful Permanent Residence with tags , , , , on August 5, 2009 by GuruImmigration

(Click on Top Banner to Return to the Blog Home Page from Any Blog Article)

Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

This is probably the most common question we get asked by people who are here in the U.S. and want a green card. While most people might have heard from the media and common knowledge that marriage to a citizen is the fastest way to obtain a green card, or permanent residence, the answer may surprise you: Yes, you can, but it may be very hard depending upon how you came to the U.S. and what you’ve done since.

The reason for this is that U.S. immigration law has changed so many times over the years. Each time it changes, the process gets more complicated. So, yes, a foreign person can ALWAYS be petitioned by his or her US citizen spouse. But, petitioning is only the first step. It simply is a finding by the immigration authorities that the couple is indeed validly married to each other. What about the next step?

If the applicant came to the U.S. with a visa or was inspected in some way at the border or airport, then that’s the best situation. They can file to adjust their status to get a green card at the same time that their U.S. spouse file a petition for them, rather than having to wait for the spousal petition to be approved first (which could take a year or more) and then filing for the green card. There is no waiting period for a visa to become available. The only waiting would be the processing time U.S. Citizenship & Immigration Services (USCIS) takes to decide the application, which is about six months, for example, in Los Angeles, and in most USCIS offices throughout the country.

This is all done without the applicant having to leave the U.S. to finalize the process. It does not matter how long the applicant has been in the U.S., even if they have been out-of-status for a long time on the visa  they used to enter the U.S.  Finally, as long as the applicant does not have reasons that prevent them from being admitted to the U.S. such as criminal convictions, previous overstay in the U.S. followed by departure, drugs, health/mental problems, or other specified problems under the law, their case is approved. This is the easy green-card situation that many people hope for.

Unfortunately, there are a large number of people who came to the U.S. illegally by crossing the border, especially from countries such as Mexico, El Salvador, Guatemala, and sometimes China. They were never inspected upon entry. Those are the hard cases we mentioned at the beginning. In fact, they can be extremely hard! That will be dealt with in our next post.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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