By Atty. Kenneth Reyes
Recent changes in immigration legislation has made it more difficult to pursue certain traditional paths to obtaining permanent residency in the United States. Employment based immigration has been affected by retrogression. H-b visas has been affected by lower visa quotas. However, one traditional way of obtaining permanent residency which has remained unchanged is through a petition by a US citizen spouse.
As a spouse of a US Citizen, an alien is considered an immediate relative and entitled to immediately apply for a green card inside the United States. This is usually done by simultaneously filing an I-130 Petition for Alien Relative and an I-485 Application to adjust status. However in order to do this, the alien spouse must have been inspected when the alien entered the United States or if not inspected must be grandfathered by section 245(i) of the immigration and nationality act.
Being inspected means that the alien entered using a valid visa, paroled inside the United States, entered using the visa waiver program. The alien is grandfathered by section 245(i) if a family petition or a labor certification has been filed for the benefit of that alien prior to April 30, 2001. If the alien was not inspected nor grandfathered under section 245(i), such as if the alien crossed the border illegally, the alien cannot obtain his or her green card inside the United States.
Along with the application and petition, the alien is also required to take a medical examination by a physician designated by the USCIS. The result of that physical examination is reported in a USCIS form and sealed in an envelope submitted with the Petition and Adjustment Application.
The alien spouse may also apply for a work authorization card with the Petition and Adjustment application. The work authorization card will allow the alien spouse to work legally in the United States, obtain a social security card, and a driver’s license while that person is waiting for his or her green card interview. Work Authorization card are usually issued in about 2 to 4 months from filing the application.
The green card interview is usually set in about 8 to 9 months from the time the Petition and Application is filed. The green card interview is the most important step in the process. It is through this process that the USCIS officer usually determines whether the marriage, which forms the basis of the Petition, was entered in good faith. The adjudicating officer usually asks detailed questions about the marriage relationship between the US Citizen spouse and alien spouse. If the couple does not have children, the marriage are usually subject to closer scrutiny.
Along with this inquiry process, the USCIS would usually request for certain documents that proves a bona fide marriage. Some of these documents may be in the form of pictures, joint utility bills, health insurance documents, and many more. If everything goes well, the USCIS officer will approve the case and a green card will be mailed to the alienâ€™ address within a reasonable time period.
If the couple has been married for 2 years or more, the alien spouse will receive a permanent green card. If the couple has been married for less than 2 years, the alien will receive a conditional green card. The alien spouse will have to file a petition to remove the condition 3 months prior to the expiration of the conditional green card which is good for two years.
Obtaining legal status in the United States is a one shot deal. People should seek the assistance of an experienced Attorney to guide them through this important and and once in a lifetime process.
Attorney Kenneth Ursua Reyes is President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.Clocated. isÂ at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail firstname.lastname@example.org.