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Adjustment of Status

Adjustment of Status, Citizenship/Naturalization, Family Immigration, Green Card

US Citizenship based on marriage to a US Citizen?

Q: I’m a Canadian citizen married to a US citizen and I’ve never applied for adjustment of status or green card. Can I bypass the green card and apply for citizenship since I’ve been married and living in the USA for 5 years?

A: No, based on what you’ve described, you are not eligible to apply for citizenship. I think you may be confusing several regulations and procedures. A permanent resident (green card holder) is eligible to apply for citizenship after holding permanent resident (green card) status for about 3 years if she or he is married to a US citizen. However, since you do not have a green card, you would not be eligible to apply for citizenship. You’d need the green card (permanent resident status) first.

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Adjustment of Status, Children, Family Immigration, Green Card

Can my wife’s children get a green card?

Q: I am sponsoring my wife for a green card. She has 2 children from a previous marriage. Can we add her children to her green card application as derivatives or dependents?

 

A: Your wife’s children may be able to receive permanent resident status (green cards), but not as derivatives of your wife. Your wife is considered an Immediate Relative for immigration purposes, and so her children would need to qualify on their own for permanent residency. Generally this is done by the stepparent (you) sponsoring the stepchildren. Here’s how it works:

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Adjustment of Status, B Visitor Visa, Family Immigration, Green Card

Extend a visitor visa or apply for a green card?

Q: I am a US Citizen, and my mom is a citizen of China. She is here on a B-2 visa for a visit and she’s considering extending her stay or applying for a green card. Which is a better choice?

A: Yes, either extending a B-2 visitor visa or applying for permanent residence (a green card) might be possible for your mom. I’ll list some guidelines below to help you start to think about this situation:

Extending a B-2 visa: B-2 tourist visitors may be granted extensions up to 6 months after their status expires. To request an extension, your mom needs to apply before her current visa expires. I recommend she applies after being in the US about 3 months. When she applies, she needs to provide a reason for her request, and provide evidence of the reason if possible. A common reason for extending a B-2 tourist visa is related to health issues. Sometimes a visitor needs to stay longer because of a doctor’s order, or in order to obtain medical treatment.

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Adjustment of Status, Employment Immigration, J visa

Working as an Au Pair on a J visa — host family wants to sponsor me to stay permanently

I’m working as an Au Pair on a J visa. My host family would like to sponsor me as a permanent resident. Can they help me stay in the US permanently?

Probably not. An employer can sponsor a foreign national for permanent residence in only very specific cases. The employee needs to meet specific requirements (example: exceptional ability, outstanding professor, or employment that requires a bachelor degree and there are no qualified US workers available for the position. See more here.

Also, as a J1 visa holder, you may be subject to the two-year Home-Country Physical Presence Requirement based on section 212(e) of the Immigration and Nationality Act.

You may have other options for remaining in the US. You should consult with an immigration attorney who could review your options and history and goals in detail. Good luck!

Adjustment of Status, Employment Immigration, Family Immigration

*UPDATE* October 2015 visa bulletin helps with backlog

***UPDATE 9/25/2015

[From American Immigration Lawyers Association (AILA)]

Update: On September 25, 2015, the Department of State published a revised Visa Bulletin for October, rolling back the “Dates for Filing” for several visa categories. This “Revised September 25, 2015″ Visa Bulletin supersedes the previous Visa Bulletin for October, which was published on September 9, 2015.

Please note that the following “Dates for Filing” have changed:

Category (9/9/15)
Filing Date
NEW (9/25/15)
Filing Date
Difference
EB-2 China 5/1/2014 1/1/2013 1 year, 5 months
EB-2 India 7/1/2011 7/1/2009 2 years
EB-3 Philippines 1/1/2015 1/1/2010 5 years
FB-1 Mexico 7/1/1995 4/1/1995 3 months
FB-3 Mexico 10/1/1996 5/1/1995 1 year, 5 months

 

October 2015 Visa Bulletin allows some to apply to adjust status years before priority dates are current

The October 2015 visa bulletin has something new to help with backlogged categories! It includes separate charts with new dates for employment-based (EB) and family-based preferences who are adjusting status in the US. Starting October 1st, these I-485 adjustment applicants can apply to adjust status based on dates from this new chart. Those filing for the adjustment of status will be able to apply for work permits, social security numbers, and Advance Parole travel documents. Note, however, that although these individuals can apply to adjust status, they will still need to wait for the priority dates to become current before USCIS will approve the adjustment to permanent resident.

For example, citizens of India in the EB-2 category can use the priority date of 7/1/2011 to apply for an adjustment of status, rather than waiting to apply for adjustment based on the 5/1/2005 date. When applying for the adjustment of status, applicants can apply at the same time for work permits and travel documents. These applicants would then wait for green card approval until the priority date became current (by watching section A of the employment-based preferences, which currently has a date of 5/1/2005). However, during the wait, they could have a pending I-485, a work permit and a travel document.

See more information from Lexology, and from the National Law Review.

Adjustment of Status, Children, Family Immigration, Green Card

How do I show a bona fide relationship for my spouse’s green card application?

If you are filing form I-130 to petition for permanent residency for your spouse, you need to show your relationship is bona fide, or genuine. Give yourself time to think about what documents you have that can be used to prove your relationship. Below is a list with some ideas, but it is not a comprehensive list. An attorney can talk in more detail to you about your particular relationship and the best evidence for your case.

USCIS gives a list in the instructions of evidence to provide, and this is the best starting place.  Below is USCIS’s list, with my advice for preparing evidence:

Documentation showing joint ownership or property

If you and your spouse own property together, like a house, car, or boat, include a title or deed with that shows both of your names.

A lease showing joint tenancy of a common residence

Include a copy of your lease if it shows both names. 

Documentation showing co-mingling of financial resources

While not required, many couples do share a checking or savings account, and this is a good way to show evidence of your relationship. 

Birth certificate(s) of child(ren) born to you … and your spouse

This one is pretty straight-forward! Include birth certificates of any children you had together. Make sure both of your names are on the certificate(s).

Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the marital relationship

Ask family members and friends to write letters affirming your relationship. Writers should include their full name, how they know you, how they know about your marriage (e.g.: I know they are really in love, I attended their wedding, or I enjoy eating dinner with them, or we took a trip together last year). Letters should end with an oath, swearing that the information provided is accurate.

USCIS states that each affidavit should also include the writer’s full name, address, date/place of birth, relationship to the couple.

Normally, it is also beneficial for the couple to write similar affidavits explaining how they met and describing the the relationship.

Any other relevant documentation to establish that there is an ongoing marital union

Include 3-10 photographs showing you and your spouse together in different places, seasons, and with different people.

Print and include emails, text messages, cards, or other notes between the two of you that show your relationship 

Include your tax return, if it shows both of your names.

Another idea is to dig up records from trips you’ve taken together. Find airline tickets, confirmation emails, or matching passport stamps. These can be organized and labeled to show you travelled together to the same places.

Still need more evidence? Be creative! Look for Facebook posts showing both of you, receipts for wedding rings, wedding announcements, and photos from your wedding. Find documents for insurance benefits that have both your names, or even copies of your state ID’s showing you have the same address.

Adjustment of Status, Children, Family Immigration, K-1 visa, K-2 visa

Green Cards for fiancee and her children

I am a US Citizen and would like to sponsor a green card for my fiancee. She has a 6-year-old child she adopted herself, and an 8-year old child who has a biological father in her home country. Can she bring her children to the US with her?

Yes, it might be possible. To begin, each child has a special requirement you need to be aware of:

  • Child 1: Adopted children need to be in custody of the adoptive parent, and need to have resided with the adopted parent for 2 years to be considered a “child” for immigration purposes. These 2 years or residing with the parent can happen before the child is adopted. You would need to show proof of the residency, so check to see if your fiancee has a court order or document showing the dates of custody.
  •  Child 2: many countries logically have special requirements to prevent children from being taken out of the country agains a biological parent’s wishes. You may need the biological father’s written notarized statement allowing his children to obtain a US visa and leave the home country. Check your country’s US Embassy page to see specifically what the embassy needs before allowing the children to travel.  Be careful – while some countries do not specifically list this requirement for a US visa, the process to obtain a child’s passport may require consent of both biological parents. Make sure to consult with the child’s biological parent to make sure all parties consent to the children traveling to the US.

If you’re able to satisfy each child’s special requirements, you can move forward with helping your fiancee and the children come to the US! Generally, there are two paths you could follow to get started (I discussed them in more detail here, and an attorney could discuss additional options depending on your particular circumstance.) Here is an overview of costs/timelines related to the 2 children of your fiancee:

Path A: You marry your fiancee anywhere in the world, and then petition for her, as your new wife to be a US Permanent Resident. You would also file petitions for the children at the same time. They would both be considered your step-children, and a step-child is considered a “child” for immigration purposes as long as “the child was under 18 when the step-relationship was created.” This means you would pay the $420 filing fee 3 times. Processing would take anywhere between 6 months to 1 year, and then all 3 would have a visa interview with the US embassy. There would be additional fees with the Embassy for all 3 people. If all went smoothly, all could then come to the US and would receive green cards.

Path B: You will begin by filing a K-1 visa petition for your fiancee, which takes around 4 – 9 months to be determined and would cost $340. Her children are able to be listed on her application because they are under 21 and unmarried, so there is only 1 fee to pay. They will attend her visa interview along with her (paying Embassy fees again for all 3 people), and if all goes well — travel with her to the US in K-2 status. Next, you would marry within 90 days, and then your new wife and both children would apply for an adjustment of status. This would require a large petition, showing proof of the marriage and of each family member’s relationship. There would be a separate petition for your wife and each child, and 3 government processing fees of $1070. 

This is a general overview of the process. Speak with an attorney so that you can describe your situation in detail to make sure no other complications would arise. Best Wishes!

Adjustment of Status, B Visitor Visa, Family Immigration, K-1 visa

I am a US Citizen and want to marry my Canadian boyfriend. How can I get him to live in the US with me?

Q: I am a US Citizen and want to marry my Canadian boyfriend. How can I get him to live in the US with me?

A: Yes, you have a couple options . . .

-1- You could apply for a K-1 fiancé visa for your boyfriend. This would let him enter the US for 90 days and you would get married during this time. After you married, you spouse could stay in the US apply to adjust status to a permanent resident (aka get a green card!) For this path, you would start by filing an I-129f. This would be processed with USCIS, and then would be sent to NVC, and eventually to the US Embassy in Canada. It could take around 4-9 months.

 

-2- Another path is to marry your boyfriend overseas, and then after you’re married, you would file an i-130 to sponsor him as your spouse. In this scenario, he would wait in Canada for the I-130 to be approved, and then would enter the US and be able to immediately obtain a green card. This second process might cause a little longer wait in Canada, but it would have less filing fees.

 

An attorney could help you write out the options and organize all of the costs and timelines for you. Also, a word of caution: your boyfriend cannot obtain a B visitors visa if his intent is to come to the US, marry you, and remain in the US to adjust status.