INFORMATION ABOUT IMMIGRATION

We hope that the questions and answers presented here will assist you in familiarizing yourself with the issues and terms associated with Immigration. While the material below attempts to answer common questions in this area, state and local laws may significantly modify the facts set forth. Because all legal problems are unique, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

HOW DO I KNOW IF I AM ELIGIBLE TO BECOME A U.S. CITIZEN?

If you were not born in the United States or do not have at least one parent who is a U.S. Citizen (in which case you may be eligible to obtain a Certificate of Citizenship), you may file for Naturalization. In order to be eligible for Naturalization, you must:

• Have been a Permanent Resident of the United States for the past five years; or
• Been married to and living with a U.S. Citizen Spouse and been a Permanent Resident for the past three years; and
• Been physically present in the United States for the majority of time within the past five years.

Additionally, a person who has served in the U.S. military and several other groups may be eligible for citizenship upon certain conditions.

I AM AN IMMIGRANT WHO WISHES TO REMAIN IN THE U.S. WHAT ARE MY OPTIONS?

So long as you entered the United States legally on a Visa, through parole, or through some other legal means, you are eligible for sponsorship to become a U.S. Permanent Resident. To become a Permanent Resident, you must be sponsored for permanent residency by one of the following:

• An immediate family member (U.S. Citizen spouse, child, or your parent if you are a minor child);
• A preference relative (there are several categories of eligible sponsoring relatives who are U.S. Citizens or Permanent Residents); or
• Secure legal employment with an employer eligible to sponsor you for permanent residency.

Depending upon who your sponsor is, your wait time for eligibility to adjust your status can be anywhere from 5 months to 12 years. Upon approval, you can then file a petition to adjust your status to that of a Permanent Resident. Additionally, there are certain other limited categories for which select persons can be eligible to remain in the United States; e.g. asylum, refugee status, battered spouse petition, etc.

WHAT IS THE DIFFERENCE IN BEING SPONSORED BY AN IMMEDIATE RELATIVE, VERSUS A PREFERENCE RELATIVE OR EMPLOYER?

If you are sponsored by an immediate relative (U.S. citizen spouse, child, or parent if you are minor child), then a Visa number is immediately available for you (there are no quotas on immediate relative sponsorships). That means that the only delay in the issuance of your Visa will be the processing time, which is currently about five months. Because of the immediate availability of the Visa number, you can file your Application for Adjustment of Status at the same time as your sponsor's Application for your Sponsorship. This allows you to also file for your employment authorization and travel authorization while waiting for your green card (permanent residency).

IF I AM SPONSORED TO BE A U.S. PERMANENT RESIDENT, ARE MY SPOUSE AND CHILDREN, ELIGIBLE AS WELL?

Yes, if you are sponsored for permanent residency by one of the relatives or employers referenced above, then your spouse and minor children are eligible for permanent residency as well.

AM I ABLE TO REMAIN IN THE UNITED STATES IF MY VISA EXPIRES WHILE MY SPONSORSHIP PETITION FOR PERMANENT RESIDENCY IS PENDING?

Yes. If you entered the United States legally, are eligible for sponsorship and have been sponsored for permanent residency by an eligible sponsor, you may remain in the United States until a decision is made on the pending application.

IF I ENTERED THE UNITED STATES LEGALLY, BUT MY VISA HAS EXPIRED AND I AM CURRENTLY OUT OF STATUS, CAN I STILL BE SPONSORED FOR PERMANENT RESIDENCY?

If you entered the United States legally, even if your Visa has expired, you are eligible to be sponsored for permanent residency.

IF MY VISA HAS EXPIRED, CAN I TRAVEL OUTSIDE OF THE UNITED STATES WHILE MY PERMANENT RESIDENCY IS PENDING?

If your Visa has expired, you cannot travel outside of the United States until your sponsorship has been approved. If you have already filed for Adjustment of Status to Permanent Resident, you can no longer travel on your Visa. If you have filed an Application for Advance Parole along with your application for Adjustment of Status, you must travel via the Advanced Parole; failure to adhere to this may lead to a determination of abandonment of your adjustment of status application to Permanent Resident.

AM I ELIGIBLE TO WORK IN THE UNITED STATES WHILE WAITING FOR MY PERMANENT RESIDENT STATUS?

If your sponsorship has been approved and you have filed for your adjustment of status (you can do both at the same time if you've been sponsored by an immediate relative), then you can file for employment authorization. This allows you to work while waiting for your green card.

MY FIANCÉ CAN'T ENTER THE U.S. DO I HAVE TO GET MARRIED IN HIS OR HER COUNTRY?

If you are a U.S. citizen you don't have to get married in a foreign country. Instead, you can sponsor your fiancé for a fiancé Visa. This will allow your fiancé to come to United States for the wedding. However, your marriage must occur within 90 days, or the Visa will expire. After the marriage, you can sponsor your new spouse for permanent residency, and he or she can remain in the U.S. with you throughout the processing.

IF I MARRY MY FIANCÉ OUTSIDE OF THE U.S., CAN MY SPOUSE FILE TO BECOME A PERMANENT RESIDENT AND COME BACK TO THE UNITED STATES WITH ME?

Yes. If you are a U.S. citizen a visa number will be immediately available to your spouse, so he or she will only have to wait for processing, approval of the visa application and an interview with the U.S. Consulate. If you are not a U.S. citizen, your spouse must file for permanent residency through the U.S Consulate in his or her country. Consular processing is a different process than adjustment of status, which can only be filed by someone currently in the U.S. Unfortunately, an applicant seeking permanent resident status through consular processing must wait in his or her native country for a green card before being able to come to the United States.

MY SPOUSE APPLIED FOR PERMANENT RESIDENT STATUS AT A U.S. CONSULATE. HOW LONG DO I HAVE TO WAIT UNTIL MY SPOUSE CAN COME TO THE UNITED STATES?

If you are not a U.S. citizen but a Permanent Resident, you are not considered an immediate relative for USCIS purposes. Your sponsorship application is considered under the preference immigrant category, meaning there is a quota and your spouse has to wait for a Visa number to be available. In this case, your spouse has to wait in his or her native country until processing exceeds five years. If a visa is not available within this time, your spouse will be eligible to enter the United States on a V visa and await the remaining period with you in the U.S.

I AM HERE ON AN F-1 VISA. DO I HAVE TO RETURN TO MY NATIVE COUNTRY BEFORE TRANSFERING MY STATUS TO AN H-1 VISA?

No, you do not have to return to your native country. Some Visa transfers, such as an F-1 to H-1, can be done while in the U.S. without having to return home. However, this is not the case for all Visas, so you should consult with an attorney before seeking a transfer of your Visa.

DO I NEED AN ATTORNEY?

Yes, usually we recommend that you hire an attorney as soon as it becomes apparent that there is an issue concerning your status in the United States. Your attorney will be able to counsel you in the filing of the proper paperwork and if a hearing becomes necessary, your attorney will make sure that all the evidence in your favor is presented in the most effective way possible to maximize the likelihood that you are successful.

HOW IS MY ATTORNEY PAID?

Your lawyer will probably want to be paid an hourly fee plus costs for preparation of documents and/or negotiating on your behalf. Some attorneys may agree to a fixed or flat fee for court appearances on your behalf. Depending on the circumstances of your case, you and your lawyer may agree on a different arrangement. You should, however, discuss with your lawyer what his or her fee will be for representing you at the very beginning of your case and you should insist that your lawyer set forth in writing the fee arrangements before any work is performed on your case.

DESSEN, MOSES & ROSSITTO is happy to assist you in legal matters that involve the legal status of someone in the United States. If you have other questions or comments about Immigration or any other area in which we practice, please send us an E-mail message and we will be happy to try to assist you.

LINKS TO OTHER INTERESTING INFO

International Student Immigration Issues
U.S. Citizenship and Immigration Services
U.S. Customs and Immigration Enforcement (ICE)
United States Immigration Support

Information found at this Web site is for general informational purposes only and is not intended to be legal advice or the rendering of a legal opinion. DO NOT assume that anything contained in these Web pages answers your specific legal problem. Each legal situation is unique. You should seek independent legal advice and counsel regarding any specific legal problem you may have.