Family and Marriage Immigration FAQs
- If I have a child who is a U.S. citizen, can I obtain legal status in the U.S.?
- My spouse is a legal permanent resident, how long do I have to wait to get my legal documents?
- My relative was stopped at an airport (in any U.S. city) and released to my custody, what are my responsibilities and what does my relative have to do?
- If I am a legal permanent resident, can I file a fiancé petition for my future spouse who is outside of the U.S.?
- How do I determine what family residency visa category I qualify for?
- Will I be able to get my green card through my brother/sister who is a citizen? How long will it take?
- If a marriage petition was filed on my behalf by my spouse, but we are currently in the process of obtaining of divorce, can I still pursue my marriage petition?
- If I visit my U.S. citizen spouse on a tourist visa, but overstay that visa and we get married here in the U.S., can I adjust status as an immediate relative or spouse of a U.S. citizen?
- I am currently married to a spouse who is outside the United States, what is the process to bring her/him to the U.S.? Is there anything I could do to speed up the process of having her/him come to the U.S.?
1. If I have a child who is a U.S. citizen, can I obtain legal status in the U.S.?
You can do so under two circumstances: 1). If your child is over the age of 21 with the ability to support you, your child can file a residency petition for you, if you came into the U.S. with a visa. If you did not enter the U.S. with a visa, you may be eligible for a waiver (or pardon) that may allow you to adjust to legal status, or you may also adjust status if you are 245(i) eligible (see explanation below of who is 245(i) eligible); or 2). If you have been in the U.S. for 10 years and you can demonstrate that your child of any age will suffer an extreme hardship if you are removed to your native country, you may file for cancellation of removal or deportation.
2. My spouse is a legal permanent resident, how long do I have to wait to get my legal documents?
Your spouse may apply for your residency immediately; however, you will have to wait approximately 5 years before you receive your immigration documentation. Please refer to the visa bulletin published by the Department of State.
3. My relative was stopped at an airport (in any U.S. city) and released to my custody, what are my responsibilities and what does my relative have to do?
Your responsibility as a “sponsor” is to make sure that your relative goes to court on the scheduled date or you will loose the money that was paid to secure your relative’s release. If the released relative does not show up to court, there are no other risks or penalties for the sponsor. The relative must appear at all scheduled immigration hearings or appointments.
4. If I am a legal permanent resident, can I file a fiancé petition for my future spouse who is outside of the U.S.?
No, only U.S. citizens can file for a fiancée. As a legal permanent resident you may file for a spouse who is outside of the U.S., however, this takes approximately 5 years or more.
5. How do I determine what family residency visa category I qualify for?
The visa category is determined by four characteristics. First, the immigration status of the petitioner resident or citizen, second, the family relationship, third, the age of the beneficiary or foreigner, and fourth, the marital status of the beneficiary. The categories are defined, according to these characteristics in the visa bulletin.
6. Will I be able to get my green card through my brother/sister who is a U.S. citizen? How long will it take?
U.S. Citizens can apply for a resident petition (first step in the green card process) for their siblings. However, the applications that have a priority date which is current are almost 12 years old (as of 2008), and new applications are estimated to take even longer (approximately 17 years).
Whether someone actually receives their green card depends upon many factors. An applicant for a green card is examined by the U.S. government after the resident petition application has been approved (during the final step in the green card process—the I-485 or DS-230 applications) and the priority date is current (see Visa Bulletin— category family sponsored preference 4th preference) and they take into consideration factors such as immigration status, health, criminal history, etc. in determining whether or not an individual will ultimately be granted a green card.
7. If a marriage petition was filed on my behalf by my spouse, but we are currently in the process of obtaining of divorce, can I still pursue my marriage petition?
Whether or not a marriage petition may be continued while the couple is in divorce proceedings depends on what process has been used to file the original marriage petition and where in that process you are. For example, an I-751 (Application for Removal of Residency Conditions) can be pursued both during and after divorce proceedings. An I-130/I-485 Marriage Petition Adjustment of Status process may be continued in certain circumstances, such as when the I-130 has been approved and only the I-485 is pending. A couple is “married” until there has been an adjudication of their divorce. However, being able to pursue or continue a process is different than getting it approved. The factors or conditions that lead to the separation or divorce proceedings may cause the Immigration Service to deny the petition. This is something that an experienced immigration lawyer should review carefully.
8. If I visit my U.S. citizen spouse on a tourist visa, but overstay that visa and we get married in the U.S., can I adjust status as an immediate relative or spouse of a U.S. citizen?
Yes, you may adjust status to a legal permanent resident if you enter on a tourist visa and marry a U.S. citizen. Section 245(c) of the Immigration and Nationality Act provides an exception for individuals in this situation.
9. I am currently married to a spouse who is outside the United States, what is the process to bring her/him to the U.S.? Is there anything I could do to speed up the process of having her/him come to the U.S.?
To bring your spouse to the U.S. you must file a I-130 petition with the appropriate USCIS service center. Upon approval, you must file a I-864 (Affidavit of Support) with the National Visa Center and a DS-230 petition with either the National Visa Center or the consulate office as directed by the government. While there is nothing that can be done specifically to speed up the process, properly submitting the applications with the appropriate documentation will help prevent any unnecessary delays.
IMPORTANT NOTE ABOUT THIS DOCUMENT
The information contained in this document is general in nature and subject to change at any point in time. As such, it may not necessarily apply to all situations. Therefore, under no circumstance it should be construed as legal advice. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.
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