PETITIONS FOR SPOUSE OF US CITIZENS AND PERMANENT RESIDENTS

Petition for Spouse of US Citizens 

US Citizens can file a petition for a green card for their foreign spouse.  This is an immediate petition so there is no wait time.  If the spouse is inside the United States, the spouse can simultaneous adjust to a green card provided the spouse was inspected when he or she entered the United States even if the spouse overstayed their status.  If the foreign spouse was not inspected when he or she entered the US, the foreign spouse can still adjust inside the US if the foreign spouse was grandfathered under INA Section 245(i).

If the foreign spouse cannot adjust inside the United States because he or she was not inspected and or not grandfathered by INA 245(i), then the foreign spouse will have to go through consulate processing outside the United States.  However, the foreign spouse would have to file an I-601A waiver of unlawful presence to avoid the unlawful presence bar from preventing them from being issued their immigrant visa at the US consulate overseas.

US Citizens can also petition their Fiance and Spouses who are overseas.  We can assist in filing their petition and visa application through the US Consulate abroad.

The USCIS typically will evaluate if the marriage is Bonafide.  Sometimes the USCIS will send out a field investigation if there are inconsistencies during the interview.  Other times, USCIS has the discretion to waive the adjustment interview if they are satisfied with all the evidence submitted.

Petition for Spouse of Permanent Residents

Green Card Holders can petition their foreign spouses for a green card.  This petition is not immediate.  Such petition is a preference petition under the F2A preference category.  Generally, there is a 3 year wait for such petitions to be current before the beneficiary can apply for a green card.

If the beneficiary spouse is overseas, he or she can apply for an immigrant visa once the petition’s priority date becomes current. If the beneficiary spouse is inside the US, the beneficiary spouse has to remain in legal status under some type of non-immigrant visa or be grandfathered under INA Section 245(i) if he or she overstayed their status.

Any minor children of the foreign spouse, whether biological child of the Petitioner or Step Child of the Petitioner may also apply for a green card is the child is still a minor at the time the petition becomes current.  A minor child for immigration purposes are children under the age of 21 which is different than California State law.

Petitions to Remove Condition on Permanent Residency (2 year Green Cards)

Foreign spouses that have been married for less than 2 years to their US Citizen o Green Card holder spouses will only be issued conditional green cards that are valid for 2 years.  It is important for the couple to file a joint petition to remove the condition on the green card prior to the 2 year expiration by filing an I-751 with all the supporting evidence.  If the couple fail to do this, then the conditional green card holder will fall out of status.  During this process, the USCIS may evaluate the good faith of the marriage.  We will help you navigate through this process in order for you to get your permanent green card.

Waiver of Joint Petition to Remove Condition on Permanent Residency in failed Marriages

For those who obtained their legal permanent residence status through marriage based petition by their US Citizen spouse of less than 2 years marriage, the legal permanent residence status conferred is usually a “conditional legal permanent residence” valid only for 2 years.  The couple would need to sign and file a joint petition to remove this condition prior to the expiration of the 2 years or the conditional legal permanent resident spouse would fall out of status. 

The problem arises when the marriage is in trouble.  Often it becomes difficult to obtain the cooperation of the US Citizen spouse specially when the couple has separated.  US Citizen spouse often refuse to sign the I-751 for or appear at the I-751 interview if one is set by the USCIS.  Filing for divorce would terminate the marriage and allow you to file a “waiver” of the joint petition to remove the conditional LPR status based on entering into the marriage in good faith.  Terminating the marriage by filing a divorce is a requirement in order to file the “waiver.”  It is important to time this correctly as soon as the marriage starts falling apart because by terminating the marriage early on, you might be able to file the waiver before the expiration of your 2 year conditional LPR thus allowing you to extend your LPR status in 1 year increments until a final decision is made in your case.

For more information on how we can help you resolve your immigration as effectively and quickly as possible, please contact our office without delay.