SHORSTEIN, LASNETSKI, & GIHON
helps husbands and wives obtain
for their spouses.
Whether your spouse is here in the United States or outside the United States, we can help you with the long and frustrating process of getting them lawful, permanent status in the United States.
How do I bring my husband/wife to the United States?
If you are a United States citizen and you have married a foreign national and you want to bring him/her to the United States to live permanently, you would first file an I-130, Petition for Immediate Relative, with USCIS. You will have to prove that you are a U.S. Citizen (birth certificate), that you are married to the foreign national (marriage certificate), and that your marriage was bona fide (real) when you got married, among other things. Once the I-130 is approved, the foreign national spouse will be able to fill out and draft and application for an immigrant visa and upload documents to the National Visa Center (NVC) and schedule an interview at a U.S. embassy. At the interview, the consular officer will determine whether he or she is "admissible" to the United States. There are many reasons why a foreign national may be "inadmissible," but some common reasons are criminal convictions, prior immigration violations and likelihood of becoming a public charge.
If your spouse is approved for the immigrant visa, he or she can enter the United States on the Immigrant Visa and will be mailed a greencard within a few weeks of entering the United States.
How does my husband/wife get a greencard if he/she is already in the United States?
The process is slightly different if the foreign national is already in the United States. If the foreign national was admitted or paroled into the United States, the U.S. citizen spouse can file the I-130 at the same time that the foreign national spouse filed Form I-485, Application to Adjust Status. The I-485 is the form used to apply for a greencard. The U.S. Citizen spouse has to prove that the marriage was bona fide (real) at the time the marriage was executed. The foreign national has to prove that he or she is admissible. Once all of the forms and supporting documents are submitted with USCIS, an interview will be scheduled. At the interview, the USCIS adjudicator will question both spouses about the marriage and about the foreign national's admissibility. If approved, the foreign national spouse will receive the greencard in the mail in a few weeks.
How do I prove that my marriage is real and bona fide?
Every case is different, but this is where most people who file papers on their own tend to fall short. USCIS expects a great deal of documentary evidence to prove that the marriage is real. They want to see that you've joined your lives together in every way, including financially. They expect to see leases, mortgages or deeds with both spouses names on them, bank account statements with both spouses names on them showing money coming in and out, utility bills, phone bills, cable bills and more in both spouses names, insurance statements with both spouses names on them, and more. They want to see photos of the two of you together in different environments during different periods of time. Text message printouts, cell phone records, and social media printouts can also paint a picture of your lives together.
USCIS also wants to see evidence throughout the relationship. Therefore, if you have known each other for 10 years, you should submit evidence throughout that 10 year period. If you've known each other for 6 months, you should submit evidence throughout that 6 month period. If you have a child together, the child's birth certificate showing each spouse as the biological parent is very strong evidence. Quantity and quality of evidence is important.
What will they ask me at the USCIS Marriage Interview?
The USCIS marriage interview is not an interrogation, however, USCIS adjudicators are people, just like in any other job. There are good ones and bad. Professional and unprofessional. Nice ones and mean ones. None of this matters, however, if you are properly prepared and truthful when going to your marriage interview. The USCIS adjudicator has a job to do. If you understand that and understand what they are asking and why, the interview should go smoothly.
Typically, the marriage interview simply consists of a conversation with the adjudicator where both spouses are in the room and either one can answer the questions. They will ask how you met, about your proposal and wedding and about your life together. The adjudicator may address certain questions to a specific person, but if the adjudicator doesn't suspect fraud, they will typically conduct a casual conversation with both spouses. If USCIS suspects marriage fraud, they can separate you and question each of you separately.
The adjudicator will also ask about the foreign nationals immigration history and about any issues that may come up from criminal background checks or immigration checks through their systems. For example, if the foreign national made a statement to a consular officer or CBP officer many years before that is inconsistent with information provided to the USCIS adjudicator, the adjudicator will ask the foreign national about it.
The interview is always the most stressful part of any immigration case. It is the fear of the unknown. You may want to retain an Immigration Lawyer to help abate some of that fear by making sure there are no landmines that you may not expect that come up at the interview and to fully educate you about the process so you know exactly what to expect.
What is the Public Charge Ground of Inadmissibility and Affidavit of Support?
Along with criminal convictions, the "public charge" ground of inadmissibility is one of the biggest issues most families have to deal with when applying for a greencard. In order to be eligible for a marriage based greencard, you must prove that you are not likely to become a public charge. This basically means that you must prove that you are not going to go on food stamps, medicaid and other public benefits after you get your greencard. This used to be easy to prove by having the U.S. Citizen spouse filing an Affidavit of Support showing that they earn 125% of the federal poverty level. As of the time of this writing, for a household of 2, the U.S. Citizen spouse would have to make $21,550. This number changes periodically and you can find the current numbers and the numbers for larger household sizes on the I-864P
As of February 2020, the government now requires a new form that requires much more evidence to prove the foreign national is not likely to become a public charge. USCIS will determine whether it is more likely than not that, in the future, the person will use public benefits for more than 12 months in the aggregate during a 3 year period of time. If the foreign national used public benefits in the past, that information will be used by the adjudicator in the totality of the circumstances analysis. Not all public benefits are counted against the foreign national.
USCIS will look at the foreign national's assets, liabilities, credit report, ability to earn, health insurance, employment, education, English proficiency, family size, working age, affidavit of support and more.
What if my husband/wife came into the U.S. without papers/inspection/admission/authorization?
Only individuals who were "admitted or paroled" into the United States can adjust status within the United States to obtain a greencard. So, unfortunately, if a person entered without inspection (ewi), meaning they crossed the border without authorization, then they will not be able to apply for a greencard within the United States. There may still be options, however.
If the foreign national has been in the United States for more than 180 days but less than 1 years with unlawful presence, a three year bar will be triggered if he or she leaves the U.S. If the foreign national has been in the United States for 1 year or more with unlawful present and leaves the U.S., there will be a ten (10) year bar from coming back. These bars are triggered when the foreign national leaves the U.S. So, if the foreign national can't get a greencard in the U.S. because he or she wasn't "admitted or paroled" and can't leave the U.S. to get an immigrant visa, because they will trigger a 3 or 10 year bar, what can be done?
After the U.S. citizen spouse files and obtains an approved I-130, the foreign national can file for a waiver of the 3 or 10 year bar here inside the United States and if approved, can leave the U.S. for a short period of time just to apply for an Immigrant Visa to reenter the U.S. as an immigrant and have their greencard mailed to them within a few weeks of reentering. In order to be approved for the I-601A Provisional Waiver, the foreign national spouse would have to prove that a U.S. citizen or LPR spouse or parent would incur extreme hardship if it were denied. This waiver only waives the unlawful presence ground of inadmissibility, so it wouldn't waive other grounds of inadmissibility like criminal grounds, health grounds, or public charge grounds. This process is very complex and full of pitfalls. Always consult with an experience immigration lawyer before beginning this process.
How do I get a Work Permit (Employment Authorization Card) for my foreign national spouse?
If the foreign national spouse enters the United States on an immigrant visa, he or she will receive the greencard in the mail and will be able to work right away. If the foreign national is already in the United States when he or she applies for the greencard, the foreign national would file form I-765, Application for Employment Authorization, with the I-485. Normal processing times for greencards vary from USCIS office to USCIS office and change for each office over time and can take many months or years to obtain. For example, as of this writing, the Jacksonville USCIS office has published a normal processing time of 8 to 23.5 months and the Orlando USCIS office has published a normal processing time of 9.5 to 23 months. However, if you file an I-765, you should get a work permit within about 6 months.
* Normal processing times change often. Check here
for the latest normal processing times.
If you, or your spouse need a greencard or an immigrant visa, call Shorstein, Lasnetski, & Gihon to talk about your specific case.
Shorstein, Lasnetski, & Gihon