I filed I-130 for husband when I was a permanent resident – do I need to file another as a citizen?

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Question:

I live in the U.S. with a green card. My husband, who is from Mexico, lives here with me, but has no immigration papers. He came to the U.S. as a teenager, on a tourist visa. I filed an I-130 visa petition for him last year, and we have been waiting for his priority date to become current. Also, I have applied for U.S. citizenship, and my interview is in a few weeks. If I pass, I hear this will mean he can apply for a green card right away. But do I need to send in another I-130?

Answer:

No, you need to file only one I-130 per petitioner (that’s you) and per beneficiary (that’s your husband).

But you can’t just sit back and expect the immigration authorities to figure out that not only have you become a citizen, but that your new status as a citizen makes your husband an “immediate relative” and therefore immediately eligible to apply for a green card. You will need to advise the relevant office. That means either:

1)    If your husband plans to “adjust status” (apply for the green card in the U.S., without leaving the country), which he should be eligible to do as an immediate relative who entered the U.S. lawfully (with inspection by an immigration official), simply submitting his entire green card application to U.S. Citizenship and Immigration Services (USCIS). He’ll want to include a copy of your naturalization certificate, his I-130 approval notice, and preferably, a cover letter explaining that you have become a U.S. citizen.

2)    If your husband plans to consular process (apply for the immigrant visa and green card at the U.S. consulate in Mexico), advising the National Visa Center, which should currently be holding his file. You would send them a copy of your naturalization certificate and your husband’s I-130 approval notice, plus a letter asking that the case be upgraded to immediate relative processing. However, by the sound of it, your husband has accrued enough unlawful presence in the U.S. that he should avoid consular processing (or any departures from the U.S.) if at all possible, because he could face a bar upon return. Fortunately, as described above, he can completely avoid this issue by adjusting status.

By the way, if for some reason you do not become a U.S. citizen soon, it might be worth having your husband look into whether he is eligible for a work permit under the Deferred Action for Childhood Arrivals (DACA) program.

Consult an immigration attorney for a full analysis and assistance with the process. Or, for step-by-step guidance to the marriage-based green card process, see Fiance & Marriage Visas: A Couple's Guide to U.S. Immigration, by Ilona Bray (Nolo).

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