Living in the U.S. and Married to a U.S. Permanent Resident: What Are the Immigration Options?

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If you are a foreign national in the United States -- whether you are here lawfully or unlawfully -- and you are married to a U.S. lawful permanent resident, you are NOT immediately eligible to obtain permanent residence (a green card). Only foreign nationals married to U.S. citizens are immediately eligible for permanent residence. However, your spouse can and should take steps to start the immigration process for you now.

As the spouse of a permanent resident, you are what's referred to as a "preference relative." Annual limits apply to the number of preference relatives who are allowed green cards each year, which means there are years-long waiting lists. By filing a visa petition on Form I-130, issued by U.S. Citizenship and Immigration Services, your spouse can put you on this waiting list. But you will probably be on the waiting list for three to five years or until your spouse becomes a U.S. citizen (at which time you automatically convert to being an immediate relative).

It probably will not be legal for you to live in the United States while you wait, unless you happen to have a nonimmigrant visa that will last for all those years.

A major factor in how and where you will apply for and receive your green card is whether you entered the United States lawfully (with inspection, most likely with a visa) or unlawfully (perhaps by crossing the border secretly). If you entered unlawfully, you lose certain important rights.

Background on the Usual Green Card Application Process for Spouses of U.S. Permanent Residents

USCIS expects the application process for every spouse of a permanent resident -- even those who happen to be in the United States already -- to follow this sequence:

1. Your U.S. lawful permanent resident spouse puts you on the waiting list for a green card by filing a visa petition on Form I-130.

2. You wait overseas for an average of three to five years until you reach the top of the waiting list.

3. You apply for an immigrant visa at a U.S consulate in your home country.

4. Only when you have your immigrant visa do you come to the United States to claim your green card.

Since you are already in the United States, you would probably like to stay here with your spouse while applying for a green card. Many couples have stayed illegally in the past, and for brief periods Congress allowed them to apply for their green cards here. However, these laws are gone (although a few people can still take advantage of them).

The bottom line is that, under current law, it is difficult or impossible for the spouses of permanent residents living in the United States to remain here while  applying for a green card. Nevertheless, the options outlined below will cover every possible way to do so.

caution

CAUTION

The six-months' unlawful presence problem. If you have already stayed in the United States for six or more months beyond the expiration of your permitted stay, you have a very good reason to look for a way to get your green card without leaving the United States. If you leave the country and apply for permission to come back as a permanent resident, you can be prevented from entering the United States for three or ten years even if you are otherwise entitled to a green card through marriage (See "Consequences of Unlawful Presence in the U.S.; Three- and Ten-Year Time Bars" for further discussion.).

Spouse of a Permanent Resident's Immigration Options

The spouse of a U.S. lawful permanent resident has five options (though we don’t recommend all of them, as you’ll see):

Stay in the United States legally (if you are here on a nonimmigrant visa that lasts long enough to get you through the waiting period). The important question is: Will your current visa status (student, temporary worker, or some other) really last long enough to get until a green card (visa number) is available to you? If you are on a tourist visa (B-2), the answer is probably no: A tourist visa is good for no more than six months, with the possibility of one six-month extension. If you are on some other visa, such as a student or temporary worker visa (i.e. an H-1B), you may have a chance. You would then adjust your status to permanent resident in the United States. However, all of the following will need to be true when your waiting period is over and the time has come for you to apply for adjustment of status (your green card):1) you entered the United States legally; 2) you have never been out of lawful U.S. immigration status; 3) you have never worked illegally in the United States, and 4) your visa waiting period is over and you are immediately eligible to apply for your green card.

Stay in the United States illegally, hoping for a way to adjust your status to green card holder in the United States. For example if your spouse became a U.S. citizen and your latest entry to the U.S. was lawful, this could work. Or, if you know or believe that an exception to the law allows you to adjust status at the end of your wait (as discussed below), the risk of waiting illegally may have a big payoff at the end, because you will face no penalty for your unlawful stay when applying to adjust status. By contrast, any applicant who goes to a U.S. consulate to apply for a green card is exposed to penalties for their unlawful stay -- a three- or ten-year bar on returning to the United States, depending on the length of their stay. Still, staying in the United States illegally for a lengthy period of time is a major gamble; you could be picked up and placed into removal proceedings at any time.

Leave the United States before you have overstayed your visa by six months or more, wait overseas, then apply for a green card at a U.S. consulate. Because of the short duration of your unlawful stay, you should not have a problem getting an immigrant visa to return.

Leave the United States after you have overstayed your visa by more than six months but less than one year. You would then wait out your waiting period at the same time that you serve your three-year penalty for overstaying. You would apply for your green card at a U.S. consulate.

Wait to leave the United States until your visa waiting period is over, even after having stayed unlawfully visa by more than six months. You would then apply for a waiver (forgiveness) of your overstay. (Unfortunately, as the spouse of a permanent resident, you would not be allowed to use the "provisional waiver" process, allowing some people to apply and receive a decision on their waiver application before departing the United States.) To get a waiver request approved, you will have to show that your not receiving a visa will cause extreme hardship to your spouse in the United States and if you happen to have a U.S. citizen or permanent resident parent in the U.S., to him or her, too. Realize that when the law says extreme, it means much more than the sadness your family will feel at your being thousands of miles away. The classic case of extreme hardship is someone whose U.S. spouse or parent has severe medical or emotional problems that require your regular attention. Financial hardship will also be taken into account. If the waiver is approved, you could leave and apply for your green card at a U.S. consulate.

When Can the Spouse of a Permanent Resident Adjust Status in the U.S.?

It's not easy for spouse's of permanent residents. While certain spouses of U.S. citizens are allowed to adjust status based merely on the combination of their marriage and the spouse's legal entry to the U.S., that doesn't work for permanent residents. The only remaining hope is that they come under old laws, based on having started an application process for a green card before the laws changed. The key is whether a prospective employer or a close family member of yours, even if it wasn’t your spouse, filed an immigrant visa petition (Form I-130 for family members) on your behalf either:

• before January 14, 1998, or

• between January 14, 1998 and April 30, 2001, if you can also prove that you were physically present in the United States on December 21, 2000.

If that visa petition was approved, or if it was denied only because of a mistake by the INS (as USCIS was then called), you may be allowed to adjust your status to permanent resident at a USCIS office. People who may take advantage of one of these time windows are said to be “grandfathered in” under the old laws.

If you cannot adjust status, and you do need to finish your wait for a green card in your home country, you will ultimately apply for your green card through a U.S. consulate there. Hopefully, you won’t have to wait overseas for long. See a lawyer for a full personal analysis.

by: , J.D.

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