Frequently Asked Questions - Green Cards

Generally speaking, in order to adjust your status to a lawful permanent resident you must be in lawful status. However, there is a large exception that applies to many prospective adjustment of status applicants. Immediate relatives of U.S. Citizens who entered the U.S. legally but are currently out of status may apply for adjustment of status. Immediate relatives of U.S. citizens include parents, spouses, and children (unmarried and under 21) of U.S. citizens.

If you obtained your lawful permanent residency through marriage to a U.S. citizen and you are now going to be divorced there may be serious consequences.

Foreign nationals who obtain lawful permanent residency through marriage to a U.S. citizen are initially granted conditional lawful permanent residency for a period of 2 years. Ninety days prior to the expiration of this 2 year period the conditional lawful permanent resident and his or her U.S. Citizen spouse are required to file a joint petition to remove the conditions on the residency.

If the marriage is terminated prior to the expiration of the two year period the USCIS may not grant a permanent green card.

If the relationship is still amicable and the parties can file the petition jointly the petitioner must establish the the marriage was entered into in good faith and not for the purposes of obtaining a green card. This is more difficult to establish when the parties are divorced or separated but it is possible and the divorced or separated conditional resident can still obtain a permanent green card.

If the U.S. Citizen is not willing to file the petition jointly, the condition resident must also seek a waiver of the joint filing requirement.

In either case, this is a very serious situation and can result in the loss of your permanent residency if not handled properly.

Learn more about the immigration issues related to failed or failing marriages here.

Cases that involve foreign nationals who entered the United States illegally are difficult. First, it is important to define what it means to be illegal. For immigration law purposes, a person who is an illegal alien is one who entered the country without inspection by an immigration officer. Simply put, this means someone who snuck across the border.

There are two immigration laws which make these cases difficult. First, illegal immigrants to not qualify for adjustment of status. This means that they must return to their country to apply for an immigrant visa. The second law, commonly referred to as the 3/10 bar, provides that anyone who has been in the U.S. unlawfully for more than 180 or 365 days is barred from returning for 3 or 10 years respectively.

Thus, the problem is that in order for the unlawful spouse of a U.S. Citizen to gain lawful permanent residency he or she will have to return to his or her country. Even if an immigrant visa is available and granted the 3/10 year bar will prohibit the spouse from obtaining a visa to return to the U.S. legally.

There are waivers available for the 3/10 year bar but they can be difficult to obtain and there is no guarantee in any case that a waiver will be granted.

This places families in a very difficult position because in order to obtain lawful status the foreign national spouse will have to depart the United States and remain there during the visa application which can take a year or more. Furthermore, at the end of the process, if he or she is unable to obtain a waiver of the 3/10 year bar the spouse will not be able to return to the U.S. until expiration of the 3 or 10 year period.

For many couples, this is not a realistic or viable solution. Unfortunately, it is the only option currently available. I am hopeful that our legislature will address this issue and other immigration law issues in the near future but for the time being we are all stuck with these rules.

If your spouse entered illegally but was the beneficiary of an immigrant visa petition filed on before April 30, 2001 he or she maybe able to adjust his or her status pursuant to a section of the Life Act commonly know as 245(i).

Parents of U.S. citizens are considered immediate relatives of U.S. citizens. This means that an immigrant visa is available for the parent. However, a child cannot file a petition for his or her parent until he or she reaches the age of 21.