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Why Don’t You Have Your Papers? You’ve Been Here for 20 Years!

Magdalena Gomez Gregorio, 11, cries while talking to reporters about her father, who was arrested by ICE agents during a raid in Mississippi on Aug. 7, 2019. Courtesy of ABC News.

Magdalena Gomez Gregorio, 11, cries while talking to reporters about her father, who was arrested by ICE agents during a raid in Mississippi on Aug. 7, 2019. Courtesy of ABC News.

Getting a Green Card is Not an Easy Process

Following the most recent ICE raid on a food processing plant in Mississippi, in which 680 undocumented immigrants were detained, there’s been a lot of questions about why these people did not fix their status in the decades they’d lived in the U.S.

In my discussions with family and friends, I found many of them believed that simply being in the U.S. for decades or having U.S. citizen children could result in an undocumented immigrant obtaining a permanent resident or green card. This is NOT the case. If it were, our jobs as immigration attorneys would be a lot easier.

Factors to Consider in a Green Card Case

There are several factors to consider when determining eligibility for a permanent resident card, including the following:

  • Immediate relative U.S. citizen or lawful permanent resident family members (spouse, parent, child);

  • Manner of entry into the U.S. (with inspection, without inspection, paroled in, etc.);

  • Previous exits and entries into the U.S.;

  • Date of entry into the U.S.;

  • Previous deportations;

  • Criminal record;

Marriage to a U.S. Citizen does Not Mean Automatic Green Card

In this article we provide an overview of the permanent resident process of an immigrant who is married to a U.S. citizen.

If you have questions regarding petitions filed by other family members, including children, parents, or siblings, please contact the Holland Law Firm, PLLC at (832) 328-7877 or attorney@tjhollandlaw.com.

Before we get started, lets address the common misconception that marriage to a U.S. citizen automatically grants an immigrant lawful permanent resident status. Every immigrant must apply for lawful permanent resident status; however, the exact process and timeline varies based on manner of entry to the U.S.

I Entered with a Visa, but Overstayed

Section 245(a) of the Immigration and Nationality Act (8 U.S.C. § 1255) requires that an alien be inspected and admitted or paroled into the United States in order to be eligible for a permanent resident card in the U.S.

There are different ways to be admitted or paroled into the U.S., including visitor visa, humanitarian parole, advance parole, etc. For the purposes of this article, we will state the applicant entered with a B1/B2 visa (visitor visa) and is married to a U.S. citizen.

If an immigrant entered the U.S. with a visitor visa, the permanent resident process can be pretty straightforward. It’s also the preferred method for most applicants, because the entire process occurs in the U.S.

First, the U.S. citizen spouse files an I-130, Petition for Alien Relative. I refer this document as a marriage based petition.

With this application, the U.S. citizen spouse provides proof of a “bona fide marriage” or a genuine marriage. There’s not an exhaustive list of evidence; however, examples of a bona fide marriage include the following:

  • Marriage Certificate

  • Joint Bank Statements

  • Joint Federal Income Tax Returns

  • Joint Utility Statements

Concurrently, the immigrant may file an I-485, Application to Register Permanent Residence or Adjust Status.

With this application, the immigrant will file proof of his or her eligibility for the green card, including proof of admission (visa stamp or I-94, Arrival/Departure Record), criminal record, and identity documents (birth certificate, passport, etc.).

The processing times or the time it takes United States Citizenship and Immigration Services (USCIS) to schedule an interview varies at each USCIS field office. The USCIS Houston Field Office is taking between 14-24 months to adjudicate these cases.

While the applications are pending the immigrant is eligible to receive work authorization, a travel document that permits international travel, a social security card, and a driver’s license. The aforementioned benefits make the 1 to 2 year wait a little easier for most applicants.

I Entered Without Papers

The permanent resident process for an immigrant that entered without admission or a visa is significantly more complicated. First, part of this process occurs in the immigrant’s home country or country of citizenship. There also is a risk of the immigrant getting stuck in their home country following something called a consular interview, which we will discuss later.

Just like the process described earlier, the U.S. citizen spouse files the I-130, Petition for Alien Relative; however, concurrent filing of the permanent resident application is not allowed. This means the immigrant is not eligible for work authorization, a social security card, a travel document, or driver’s license.

Which Waiver Should I File?

Once the I-130 is approved, the immigrant will have to file an I-601A, Application for Provisional Unlawful Presence Waiver, or an I-601, Application for Waiver of Grounds of Inadmissibility.

Determining which waiver is appropriate in a specific case requires a case evaluation. If you or your family member is considering filing a waiver, we recommend that you consult with an experienced immigration attorney.

Filing the wrong waiver or failing to submit the requisite evidence could have devastating consequences, including the loss of hundreds of dollars in filing fees, having your case denied at the consular interview outside the U.S., and more.

In this article we will briefly discuss the I-601A waiver only. An individual who enters the U.S.without a visa accrues unlawful presence. The immigrant files the waiver requesting U.S. government forgive their illegal entry and the time he or she has been in the U.S. without authorization.

This part of the process is tough, because the immigrant must prove that his U.S. citizen spouse will suffer extreme hardship due to forced separation and relocation. There’s no exact definition of extreme hardship. USCIS approves and denies these cases on a case-by-case basis.

The Final Interview is Outside the U.S.

If the waiver is approved, the immigrant will start a process called consular processing. During consular processing the immigrant will coordinate with the National Visa Center (NVC) and the consulate in their home country and schedule an interview in their home country. The consular processing process varies between countries.

It’s important that the immigrant does not leave the U.S. until the I-601A waiver is approved and the consulate has scheduled an interview. If all goes well during the interview, the immigrant’s passport will be stamped with proof of permanent resident status. USCIS will issue the permanent resident card or green card and deliver via mail to the immigrant’s address in the U.S.

The average timeline from start to finish in these cases is 2 and a half to 3 years; however, any complications can increase the processing times by several years.

We Handle Immigration Matters Anywhere in the U.S.

Tatiauna Holland is the owner and managing attorney of the Holland Law Firm, PLLC. Attorney Holland’s primary practice area is family-based immigration and deportation defense, which includes marriage-based permanent resident applications, citizenship and naturalization, DACA, fiancee visas, asylum, and more.

The Holland Law Firm, PLLC represents clients in their immigration matters anywhere in the United States. Contact our office at (832) 328-7877 or visit our website www.hollandimmigrationlaw.com with any of your immigration questions.

The aforementioned article is a simplified overview of the permanent resident process. The information is for educational purposes only and should not be construed as legal advice. We strongly encourage consulting with an experienced attorney about your specific case.

References:

CNN: Their parents were taken in Mississippi immigration raids. For these kids, the trauma is just beginning

USA Today: Trump Aid Regrets Unfortunate Timing on ICE Raid of Food Processing Plants in Mississippi

USCIS Processing Times