July 2009 Archives

An oddity in the immigration system exists in regards removing conditional residence while being in a failing marriage.  When an immigrant receives a green card through marriage and the marriage is less than two (2) years old, the immigrant receives what is known as conditional permanent residence.  Conditional residence is identical to lawful permanent residence in terms of the rights granted to the immigrant.  However, conditional residence expires in two (2) years, and a married couple must jointly file an I-751 Petition to Remove Conditions in the 90 day period prior to expiration in order for the immigrant to maintain permanent resident status. 

When the underlying marriage has remained intact, this process is fairly simple.  Complications arise when marital trouble prevents the immigrant from jointly filing the I-751 Petition with their spouse.  Immigration regulations allow an immigrant who has received a final order of divorce to seek a waiver of the joint filing requirement.  However, immigrants who are either separated or who are in ongoing divorce proceedings are not eligible for a waiver of the joint filing requirement. 

Earlier this year, USCIS issued a memo clarifying what options are available for conditional residents are in a failing marriage but have not received a final order of divorce.  If a Petition is filed that seeks a divorce waiver, but a final decree of divorce hasn't been made yet, USCIS has instructed its officers to issue a Request for Evidence (RFE) with a response period of 87 days.  The idea behind the 87 day response period is to allow the conditional resident time to finalize a divorce if divorce proceedings have already been initiated.  If a final order of divorce has not been obtained in this period, the conditional residence of the immigrant is terminated, and the case may be set for deportation proceedings.  Even during deportation proceedings, if the immigrant is able to finalize a divorce, the I-751 Petition will be adjudicated on it's merits. 

The other option available to conditional residents in divorce proceedings is simply to wait to file the I-751 Petition until a final order of divorce has been made.  USCIS will generally excuse late filing if it can be proven that divorce proceedings were ongoing at the time that conditional residence expired. 

If you are a conditional resident and are planning on filing an I-751 Petition, please contact our office for assistance.

For information on the new rule implemented by the Department of Homeland Security providing interim relief for widows of U.S. citizens married for less than two (2) years, please visit our website at www.portnerandshure.com

Determining whether or not the son or daughter of a green card holder will be considered a 'child' for immigration purposes under the CSPA can be confusing.  The CSPA allows the son or daughter of a U.S. citizen to be considered a 'child' if the individual was unmarried and under the age of 21 at the time the I-130 Petition was filed.  However, for the son or daughter of a green card holder, the applicable age is determined by subtracting the amount of time an I-130 Petition was pending from the current age of the son or daughter of the green card holder.

Since calculating the applicable age of the son or daughter of a green card holder can be somewhat complicated, I will use an example to explain.  Suppose that Person A's green card holding parent files an I-130 Petition on their behalf in December of 2002.  Person A is 19 years and 1 month old at the time of filing.  The I-130 Petition filed on behalf of Person A is approved in August of 2005.  However, Person A's priority date for when an I-485 green card application can be filed does not become current until June of 2007.  In June of 2007, Person A is 23 years and 8 months old.     

To determine whether or not Person A will still be considered a child for immigration purposes, the amount of time it took for an approval to be rendered must be subtracted by Person A's current age.  Here, Person A is 23 years and 8 months old, and the I-130 Petition filed on his behalf was pending for 2 years and 9 months (i.e. the time between the December 2002 filing and August 2005 approval).  Under this set of facts, Person A will be considered 20 years and 11 months old, and hence will be considered a child for immigration purposes if Person A has remained unmarried. 

However, if Person A were 19 years and 2 months old at the time of filing, Person A would be considered 21 years old under immigration laws, and hence not be considered a child.  Under this scenario, Person A would be shifted from the 2A family preference category to the 2B category, and would likely have to wait longer to file an I-485 green card application. 

If you have questions about the Child Status Protection Act, and are interested in obtaining a green card, please consult our website



The 2002 Child Status Protection Act (CSPA) has had a dramatic impact on how family-based immigration cases involving children are adjudicated.  For the purposes of immigration benefits, a 'child' is defined as an individual who is unmarried and under the age of 21.  Classification as a 'child' is often crucial to immigration applications, as when an applicant can't be classified as a child, they often have to wait a significantly longer period of time to get a green card than they would if they were classified as a child.   

Prior to 2002, a family-based green card application had to be granted before the applicant's 21st birthday in order for the applicant to be considered a 'child' under immigration laws.  In practice, applicants would frequently 'age-out,' meaning that they would file an I-130 petition as a child, and then lose this designation as they endured lengthy delays in the processing of their petitions by USCIS.  Loss of this designation would slide applicants who were considered a 'child' of a U.S. citizen from the immediate preference category into the first preference category, and children of green card holders from the 2A preference category into the 2B preference category.   

The passage of the CSPA in 2002 has essentially solved the aging-out issue.  As applied to U.S. citizen petitioners, the law now locks in the age of the applicant at the time of filing the I-130 petition, as opposed to the age at the time of adjudication of the green card application.  For example, if a petition was filed on behalf of the 20 year old son of a U.S. citizen, he would maintain his position as an immediate preference relative regardless of how long USCIS took during processing.  The process is a bit more complicated for children of green card holders, as the age at the time of filing isn't necessarily locked in. The age that determines the applicant's preference category is calculated by subtracting the number of days the application was pending from the age of the applicant on the date the priority date became current. 

Another benefit of the CSPA is that it allows applicants to upgrade their classification.  For example, if a green card holder files a petition on behalf of their child, and the petitioner becomes a U.S. citizen during processing, the applicant is upgraded from the 2A preference category to the immediate relative category. 

An important note about the CSPA is that it locks in only the age of the applicant, and not marital status.  If an applicant gets married at any time during the processing of a petition or application, they will automatically lose their designation as a child.

If you are interested in obtaining a green card through family relation, please visit our website.

Prior to the creation of the K visa, spouses of U.S. citizens who lived abroad were required to complete the lengthy process of obtaining permanent residence in their home country before entering the U.S.  In practice, immigration laws before the existence of the K visa essentially separated married or engaged couples for periods of 2 years or more.  Fortunately, the K visa was created and now couples don't have to wait out the entire green card process while separated from their loved ones.

There are two types of K visas: the K-1 visa for fiances of U.S. citizens, and the K-3 visa for spouses of U.S. citizens.  There are a few noteworthy differences in the processes for obtaining a K-1 or a K-3 visa.  First, the K-3 visa requires that the U.S. citizen spouse submit an I-130 petition in the U.S. before filing for the K-3 visa.  The K-1 visa doesn't require an I-130 petition to be submitted at any time.  Second, the duration of validity of the K-1 visa is only 90 days, as opposed to the K-3 visa which permits presence in the U.S. for a period of 2 years.  The K-1 visa also requires that a fiancee must marry their U.S. citizen petitioner within 90 days of entry into the U.S. 

The elements of proof for a successful K visa application are essentially the same, regardless of if a K-1 visa or a K-3 visa is being sought.  The three elements that any K visa application must satisfy are proof that the petitioner is a U.S. citizen, proof of marriage to the beneficiary (or proof of intent to marry if a K-1 application) and proof that the immigrant has met his/her significant lover at least once over the last 2 years.  K visa applicants should be sure to save evidence of a meeting when they visit their significant other, like photographs, plane tickets, receipts and other types of documentation.

If you are a U.S. citizen and are interested in starting the process to obtain a green card for your spouse, visit this website for more information.

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This page is an archive of entries from July 2009 listed from newest to oldest.

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