Not Sure to Marry My Fiancee Before or After Naturalization. Help!

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

I am a permanent resident and am going to apply for a US citizenship within a week. My fiancee from Mexico and I are talking about our marriage this year. But I wonder whether we should get married before or after I convert my nationality to a US citizen. Is it better to get married before my naturalization? She came here with a B1/B2 visa with I-94 four months ago and has to renew her I-94 every 6 months to stay in California.  I’ve sent you separately details about my naturalization case.

Answer:

First of all, someone with a B-1/B-2 tourist visa can only request one extension to stay here for an additional six months, it’s not something to renew every six months (a person simply can’t be a tourist for years and years in the US).  Also, your fiancee must have good reasons why she wants to stay here longer as a tourist before the extension will be granted.  As long as she files for extension before the date her current stay expires on her I-94 (which should be in about two months), she will be allowed to stay here pending a decision on the extension.  Since you’re here in the Los Angeles area, it’s currently taking California Service Center about 2 ½ months on average to reach a decision.

As far as timing of the marriage, you can do it before or after your naturalization has been approved based on the information you’ve shared.  It should be after her tourist extension application (Form I-539) has been filed, to prevent USCIS from denying the extension on the grounds that she has a husband who has a green card and so she’ll likely have immigrant intent to stay permanently in the US.  If you do that and file an I-130 for your wife immediately, still before your naturalization case is approved, there will be no visa number available for a few years for her because the I-130 will be under the F2A category, which has only a limited number of visas each year.  Filing the I-130 for her will only be a preliminary step; she still would have to wait a few years before being eligible for a green card.  That would be the situation if you don’t become a citizen quickly enough.  However, as soon as you become a citizen, the I-130 is automatically converted to that for an immediate relative and she’ll be able to file for green card right away if she’s still in the US.  From what you sent me before, your naturalization case (Form N-400) will probably be approved within about five months from now here in L.A. since it looks pretty routine.  You don’t seem to have difficult issues such as criminal arrests or convictions, or other issues that could drag the case out for more than the expected time until approval.  So, yes, under these circumstances, you can marry after her own I-539 is filed and file an I-130 for her because five months from now, it appears fairly certain you will become a US citizen (Note:  this is an average time as currently being reported by USCIS, each case may take slightly longer or shorter).

You also asked what if for some reason your citizenship is delayed and takes a lot longer to be approved, say a year and half from now.  In that case, your wife, even after receiving an extension of her tourist status for six months, may be running up against the end of her allowed stay while your own case is still waiting for a decision.  However, she could stay here and even be out of status and wait for a favorable decision on your case, then file for green card.  Is there a risk for her being out of status?  Yes, but there’s only a slight risk since immigration officials are not likely, during current immigration climate, to send notice of deportation proceedings to her for being only a short time out of status.

You can, of course, delay the marriage until after your naturalization is approved.  That would seem to be about five months from now, as stated above, if your case is smooth.  But even if it’s not smooth, and takes a year and half to get approved, and assuming she will even be out of status, you could still marry her after your naturalization has been approved, and she’ll be able to get her green card here.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people have written us skeptical or not sure of the danger of the 3- and 10-year bars. Admittedly, these bars seem somewhat abstract or theoretical, and it can be difficult to grasp how they could affect oneself. Some people have asked how is it that people who are already in the U.S. “cannot get their papers here.” Well, that’s the way the law currently is. It was passed in 1996 as a way of penalizing people who came here illegally or who came legally but overstayed their visas for at least 6 months. The penalty was that these people could not get their papers here but must travel back to their home countries to do so. However, as soon as they set foot outside the U.S., they are subjected to these bars when they try to apply legally to return to the U.S. within 3 or 10 years.

With that in mind, it was quite nice that a reader of this blog recently commented and shared her experience with the 10-year bar. Her story was quite sobering, and we thought it has a little bit of everything that we’ve been blogging about, so we wanted to share it with you to show how this bar could wreak havoc on people’s dreams of living in the U.S. We’ve edited some of the original language to make it easier to read:

Hi Guru,
I came to USA on a tourist Visa in 1994 July. Got married to a green-card holder then in 1997 October. My husband applied I-130 for me in October 1997 and it was approved. I went with a friend of mine to the immigration in 1998 and I was inquiring for employment authorization and that’s where I was caught. I was released couple of hours later and reported to them every month. Appeared before the judge in Sept. 1998 and granted voluntary departure. The judge gave me 120 days which will expire on December 31, 1998. I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time I had to leave USA on 30th December 1998. I did not overstay the 120 days given by the judge.

OK, this lady had an I-130 petition filed for her by her green-card holder husband in 1997, then went to the Immigration Office to try to apply for an employment authorization document (EAD, or work permit) and got caught. Why? Doesn’t having an approved I-130 entitle you to a work permit?

The answer is most of the times no, not at all. When the husband filed the I-130 in 1997 for her, that placed her into the F2A category of spouses and children of green-card holders. At that time in 1997, people in that category had to wait something like 4 years for a visa number to be available. However, as we’ve shown elsewhere, without a visa number available, one cannot get a work permit. So, in 1998, when she went to the local Immigration office to inquire (and most likely apply) for the work permit, she was not entitled to one yet. At that time, we know she was out of status because it had been 4 years since she came to the U.S. on the tourist visa (in July 1994) and no tourist visa lasts 4 years. The act of going to the Immigration office made them aware of her presence in this country as being out-of-status. Therefore, they detained and released her but ordered her to appear in front of a judge in removal proceedings!

This shows that people who are out-of-status in the U.S. should proceed extremely carefully when trying to apply for something with Immigration here without consulting a lawyer. The lady here presumably did not do so, or got bad advice that she could qualify for a work permit, and made the mistake of applying for it. That’s how Immigration discovered that she had overstayed her tourist visa by 3 or 4 years.

What about the husband becoming a citizen, wasn’t that supposed to help her? Well, no, not unless he was approved for naturalization and was sworn in on time. In removal proceedings, the judge only gives the alien a couple of continuances at most, a good lawyer could get even more. If, after the continuances, the alien still does not have any form of relief available, then the judge cannot keep delaying the case and either will order removal or allow the alien the privilege of voluntary departure. Voluntary departure allows the person to leave the U.S. cleanly without having a removal or deportation against them on their records, and the maximum time given is 120 days to leave. IF the husband had been sworn in as a citizen in time while the lady was still in removal proceedings, then she would have converted from the F2A category to the immediate relative category, and a visa number would have been immediately available to her. Then she could have applied to the judge for her green card without having to leave the U.S.!

But, unfortunately, as she stated, “I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time, I had to leave USA on 30th December 1998.” So, because her husband did not become a citizen quickly enough, she indeed had to leave the U.S. within the 120-day period granted by the judge.

Her story then continues:

I went back to Malaysia and remained there since January 1st 1999. In May 1999 my husband became us citizen and he applied for immigrant visa for me and I had the interview on May 2000 and was denied because of overstay and it was a 10 year bar. I appealed and was rejected the I-601. The 10 year bar starts from the day I left USA. I left on 30th December 1998 and i have already completed the 10 year which is 30th December 2008.

So, back in Malaysia, after her husband had become a U.S. citizen, a visa number immediately became available for her. She naturally then tried to apply for the immigrant visa to return permanently to the U.S. She first was denied her visa due to the consulate’s finding that she overstayed previously by about 4 years on her prior tourist visa. Then, she filed the I-601 to try to apply for the extreme hardship waiver. However, this was also denied. Because of this, she could not get back to the U.S. legally, and had to wait 10 years from the date she left the U.S. before she could apply again! How could this happen, you might ask, since she got voluntary departure?

Well, voluntary departure at least prevented a removal order from being on her records, which would have been worse. However, the truth of the matter is that, receiving a grant of voluntary departure while in removal proceedings in court did nothing to erase the more than one year of unlawful presence that she had accumulated in the U.S. before starting her court proceedings. Thus, she became subjected to the 10-year bar as soon as she stepped foot outside the U.S. That’s how strict this bar is. The timing was particularly unlucky because not long after she left the U.S. on December 30, 1998, her husband became a citizen, and she became qualified for a visa to return to the U.S. But, unfortunately, at the consulate interview in Malaysia, the bar was invoked against her, as you can see, and so she had to wait 10 long years until December 30, 2008 to reapply.

Note: Some people are under the mistaken impression that this 10-year bar is only applicable if there was a removal (deportation) order against them. Not true! This 10-year penalty for being unlawfully present in the U.S. at least one year (either by overstaying one’s visa that long or being here illegally when one has no visa) kicks in no matter how one departs the U.S., even if it is voluntarily!

In any event, this lady’s heartfelt story above shows that there are real immigrants out there everyday who simply cannot “get their papers” here, but must return to their countries to do so. And, when they do that, they may be stuck in their countries for 10 years before being allowed to return, as happened with this lady. Having paid her dues, she is now in the process of reapplying again through her citizen husband, and should get approved easily this time since the 10 years have already passed with her being outside the United States. This is a real story. It is a story multiplied by thousands of times. For the sake of unification of families, let us hope that Congress will remove these bars from the law as soon as possible.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

This is probably the most common question we get asked by people who are here in the U.S. and want a green card. While most people might have heard from the media and common knowledge that marriage to a citizen is the fastest way to obtain a green card, or permanent residence, the answer may surprise you: Yes, you can, but it may be very hard depending upon how you came to the U.S. and what you’ve done since.

The reason for this is that U.S. immigration law has changed so many times over the years. Each time it changes, the process gets more complicated. So, yes, a foreign person can ALWAYS be petitioned by his or her US citizen spouse. But, petitioning is only the first step. It simply is a finding by the immigration authorities that the couple is indeed validly married to each other. What about the next step?

If the applicant came to the U.S. with a visa or was inspected in some way at the border or airport, then that’s the best situation. They can file to adjust their status to get a green card at the same time that their U.S. spouse file a petition for them, rather than having to wait for the spousal petition to be approved first (which could take a year or more) and then filing for the green card. There is no waiting period for a visa to become available. The only waiting would be the processing time U.S. Citizenship & Immigration Services (USCIS) takes to decide the application, which is about six months, for example, in Los Angeles, and in most USCIS offices throughout the country.

This is all done without the applicant having to leave the U.S. to finalize the process. It does not matter how long the applicant has been in the U.S., even if they have been out-of-status for a long time on the visa  they used to enter the U.S.  Finally, as long as the applicant does not have reasons that prevent them from being admitted to the U.S. such as criminal convictions, previous overstay in the U.S. followed by departure, drugs, health/mental problems, or other specified problems under the law, their case is approved. This is the easy green-card situation that many people hope for.

Unfortunately, there are a large number of people who came to the U.S. illegally by crossing the border, especially from countries such as Mexico, El Salvador, Guatemala, and sometimes China. They were never inspected upon entry. Those are the hard cases we mentioned at the beginning. In fact, they can be extremely hard! That will be dealt with in our next post.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.