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Immigration 101Immigration in the NewsAll Forms, Fees, KitsNonimmigrant Visas, WaiversGreen Cards/AOS & LotteryU.S. CitizenshipBorders, Ports, CustomsCase Status & ProcessingLegal ConcernsOfficial Help, ResourcesTips: Life in the U.S.Cultures & AssimilationFamous ImmigrantsU.S. Immigration HistoryStudent, Teacher Resources | Green Card Through Marriage: A Q&A'Till Death Do Us Part: Marriage & The Green Card, with Carl Shusterman, Esq.This is the full transcript of this Q&A sessionJennifer Wipf: Hi everyone! This is Jennifer Wipf, your Guide to Immigration Issues at About.com.We are honored and excited to have prominent immigration attorney Carl Shusterman with us tonight for our Marriage & The Green Card Chat, "Till Death Do Us Part." Carl is on the phone with me right now and I will be moderating and transcribing his answers word for word. You can blame me for typos though! ;-) Because there are so many of you here, I will first be selecting questions that come up frequently. Even though there are dozens of questions, I hope enough will be similar that we might get to most of them. We remind you that, because these questions are general in nature, the answers should not be construed as legal advice. They should be used strictly for educational purposes. We will take questions with raised hands - like this ! Question #1: We have been waiting 19 months for our interview. Is something wrong? Carl Shusterman: Where did you file? What part of the country? Waiting times range from 1-3 years. A good place to check the waiting times in your area is either on the receipt notice that you were given by the INS or on my website at http://shusterman.com. Question #2: What is the difference between marrying a US Citizen and a Permanent Resident? Carl Shusterman: The short answer is: about 4 years. ;-) The reason is that there are no numerical limitations on the number of US Citizens who can obtain Green Cards. On the other hand, if you marry a Permanent Resident of the US you are placed under the 2A Family Preference Category. Spouses and unmarried sons and daughters of Permanent Residents are allowed 114,200 Green Cards per year. Because the demand far outstrips the supply of visas it may take you over 4.5 years to receive a Green Card. Jennifer Wipf: That is certainly a long time. Thank you Carl. OK, I see a hundred hands going up. I'll tell you what, let's just have you fire away your questions: Start typing and I will chose as many as I can. You will see a warning that you do not have "chat rights," this simply means that only I can see all the questions. (We'd all be really confused otherwise!) Question #3: If I marry an illegal alien, can we file? Does he have to leave the US? Can he get work authorization? Carl Shusterman: That depends on what type of illegal alien you marry. Generally, someone who overstays his visa or violates his status may adjust status in the United States if he marries a US Citizen. However, a person who originally entered the US without being inspected by an immigration officer is ineligible to adjust status or obtain a work authorization in the US, with a few exceptions. Question #4: What if a Permanent Resident marries an H-1B or L-1 Visa holder? Jennifer Wipf: Another excellent question. Carl Shusterman: The waiting time remains the same. The advantage is that your spouse may be able to remain in the United States legally if you marry him or her while their visa is still new. Jennifer Wipf: Well, judging from how many questions I see on this issue, that's light at the end of the tunnel for many of you! Question #5: My divorce has taken a while to come through and I am now out of status as I wait to re-marry here in the US. What should I do? Carl Shusterman: If you marry a US Citizen, you can apply for Adjustment of Status. However, if you marry a Permanent Resident, the mere filing of a visa petition on your behalf does not give you permission to remain in the United States. However, beware of leaving the US. If you remain in the United States unlawfully for more than 180 days, you may not be able to return to the United States for 3 years. If you remain in the United States unlawfully for more than 1 year, you may not be able to return to the United States for 10 years. There are waivers of the 3 and 10 year bars, if you can prove extreme hardship to your spouse. However, INS interprets the words "extreme hardship" very narrowly. Jennifer Wipf: That's unfortunate. : ( Question #6: What is the difference between marrying a US Citizen abroad or in the US? How long will we be apart? Carl Shusterman: If you marry a citizen in the United States, you will face a long waiting time, but you will be able to stay together while you wait. If you chose to immigrate from outside the United States after your marriage abroad to a US Citizen, the waiting time is much shorter, ranging anywhere from a few months to a year. But you will be separated except for when when your US spouse can visit you abroad. Don't expect to be allowed to visit the United States while you are waiting for your Green Card. Question #7: If the US spouse's current income exceeds the requirements for the I-864, (Affidavit of Support) then how important is it, in terms of being accepted or rejected, that they have made the required income on EACH of their past 3 tax returns? Carl Shusterman: All sponsors of family aliens must execute an Affidavit of Support or I-864. The legal requirement is that the alien is "not likely to become a public charge." Attached to the Affidavit of Support must be the petitioners last 3 Federal income tax returns. These returns should demonstrate that the petitioner's present income is at least 125% of the government's poverty income guidelines. The fact that petitioner did not meet 125% requirement at the beginning of the 3 years should not indicate that the spouse is likely to become a public charge if the petitioner's income of the later tax returns exceeds the 125% minimum income requirement. The individual offices of the INS tend to interpret the Affidavit of Support requirements slightly differently, however. Jennifer Wipf: I am selecting questions that several of you seem to have. Please be patient with me. :- ) |
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