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Frequently Asked Questions

by Carlos Batara

IMMIGRATION LAW
FREQUENTLY ASKED QUESTIONS

Family Petitions And Immigrant Visas

1. What relatives might qualify for a green card through their relationship with U.S. citizen?

  • Spouses
  • Children
  • Stepchildren
  • Adopted Children
  • Parents
  • Stepparents
  • Brothers and Sisters

2. What relatives might qualify for a green card through their relationship with a lawful permanent resident?

  • Spouses
  • Children
  • Stepchildren
  • Adopted Children

3. I have immigration documents. Am I am eligible to file an orphan petition?

If you are married, one spouse must be a U.S. citizen. The other spouse does not need to be a U.S. citizen but must be living legally in the United States. If you are not married, you must be a U.S. citizen and at least 25 years old.

4. Can I adopt a child from any country?

No. There are some countries which do not permit adoption. They allow legal custody as long as the custodial party resides in their country. If the child you want to adopt is from one of these countries, then the children do not qualify for immigrant status in the United States.

Fiancé And Fiancée Visas

5. I am going to marry a person who lives in another country. I also want to sponsor my spouse for a green card. Does it matter where we get married?

If you want to get married in the United States, you will need to file a K-1 fiancé visa for your future spouse. If you want to marry in the home country of your fiancé, you will need to file an immigrant visa. There is another possibility. Your fiancé could enter the U.S. on a visitor (B-2) visa, and then you can marry here. In this case, your fiancé must return home after the marriage.

6. Which way is faster to allow us to live together in the United States – a fiancé visa or an immigrant visa?

There is no clear answer. The time it takes to process a fiancé visa is different from case-to-case, country-to-country. Yet, a fiancé visa is often quicker to process than an application for an immigrant visa. The government agency, USCIS, which processes immigration visas, has a heavy workload and sometimes takes longer to process the immigrant visa paperwork.

7. What are the qualifications for a fiancé or fiancée visa?

A fiancé of a U.S. citizen is eligible for a K-1 visa if he is:

  • Legally eligible to get married under the laws of the U.S. and the home country.
  • Intending to get married to his U.S. fiancée within 90 days of arriving in the U.S.
  • Entering the United States solely for the purpose of getting married.

8. After my fiancé arrives here, can we delay the marriage date?

No. Once your fiancé arrives, you have 90 days to get married. If this does not take place, your fiancé must return to his home country.

9. After we get married, does my spouse automatically become a citizen?

No. As a U.S. citizen, you cannot transfer your citizenship to your new spouse. But you can file documents seeking lawful permanent resident status for him or her.

Green Cards And Permanent Residence

10. A friend told me that if I file papers for my husband immediately after we get married, he will get a restricted permanent resident card. Is this true?

If your spouse is granted a green card and you have been married less than two years, the permanent resident status is issued “conditionally.” This means it expires after two years.

11. How does my spouse remove the conditions on his permanent resident card?

About 90 days before the two year period expires, you and your husband must file a joint petition to remove the conditional status of his green card. There are only a few limited circumstances which allow your husband to file the petition alone.

12. What happens if my application for lawful permanent residence is denied?

If your application for lawful permanent residence is denied, the government normally will refer your case to Immigration Court. The government will ask the judge to order your removal from the United States. Once the hearings start, you can revive your application for permanent residence and have the judge look at the evidence. You are entitled to submit new evidence to support your application. You will need an experienced immigration attorney to help you.

Citizenship And Naturalization

13. I have just been granted lawful permanent resident status. How long must I wait before I can apply to become a U.S. citizen?

Generally, if you have been a lawful permanent resident for five years, you can apply to become a naturalized U.S. citizen. But if you were granted a green card based on marriage to a U.S. citizen, then you can apply after three years.

14. What happens if my application for U.S. citizenship is denied?

If your application for U.S. citizenship is denied, you have the right to request a hearing with a higher immigration officer. This request is often called an “administrative appeal” . Your request must be made within 30 days after your application is denied. You are entitled to submit new evidence to support your application. Instead of filing an appeal, you can simply re-apply, submitting a new application and paying the filing fees again.

Deportation And Removal

15. If I was convicted a long time ago for a minor crime, and my record has been expunged, do I still need to list the conviction on my immigration applications?

Yes. It is very important to be honest on all immigration papers. Even if your record has been expunged and the crime was minor, list the conviction. When you take your fingerprints, your full record of arrest and convictions will probably be revealed anyway. You do not want government officials thinking you are trying to hide it from them. They might use this as the reason for denying your application.

16. My husband was taken into immigration custody. My sister’s husband told us to ask for cancellation of removal. What is this?

There are three different categories for cancellation of removal.  This is part of deportation and removal defense.

The first is for lawful permanent residents. They must prove (a) they have been a lawful permanent resident for at least five years, (b) they have resided in the United States, after being admitted, for at least seven years, and (c) they have not been convicted of an aggravated felony.

The second is for immigrants who are in living in the U.S. without legal documents. They must prove (a) they have lived here for ten years, (b) they have exhibited good moral character for the entire ten years, and (c) a spouse, child, or parent who is either a U.S. citizen or lawful permanent resident will suffer “exceptional and extremely unusual” hardship if the immigrant is removed from the United States.

A third category applies to an immigrant spouse or child who been battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident spouse or parent.  This is known as a VAWA application.

17. If my husband loses his case in Immigration Court, is there any way we can keep fighting?

Yes. Within 30 days of the Immigration Court decision, your husband has to file a notice of appeal with the Board of Immigration Appeals. Such challenges are very technical and complicated. You cannot simply challenge the judge’s ruling on the basis that his discretionary evaluation of the hardship factors was incorrect.

Didn’t Find What You Needed?

If you would like access to our complete archive of immigration questions and answers, simply click this link: Index Of Questions And Answers

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