Immigration Q & A September 2013

Author by Edward Boreth

Q. I came to the US on a fiancé visa, but as soon as I arrived, my fiancé change his mind and refused to marry me. Can I stay in the US if I marry another US citizen?
A. Unfortunately you cannot get married to another US citizen and adjust your status in the US. The only way to stay in the US for someone who enters on a K-1 (fiancé) visa is by marrying the person who filed for the visa or in certain situations of domestic violence. You may also seek asylum if you are afraid to return to your country. You may also choose to remarry, leave the US and get your green card through consular processing. In all of these situations, there are certain things that can get very tricky, so before you choose to follow any of these options, consult an immigration attorney and discuss your situation in detail.

Q. Why is my immigration case taking so long? My employer sponsored me. We started the case back in 2010 and we still have not received our permanent resident card! My cousin told me that he got his green card in 2 months! Is my immigration lawyer lying to me?
A. Don’t blame your immigration lawyer just yet. You have to understand that immigration cases are like fingerprints – no two are exactly alike. Permanent residence may be based on an employment, family category or certain special case situations, and depending on the category, the processing times will vary greatly. If your husband’s employer filed for you, the case may or may not have required a labor certification. The process of obtaining a labor certification may take months longer than a case that does not require a labor certification. Then, the employer would have had to file an immigrant petition (I-140) for you, which would have a priority date assigned to it. The priority date is the date of filing the immigrant petition or the labor certification, if one is required.

Your permanent residence cannot be approved until the priority date is current. For example, employment based 3rd category’s priority date for September 2013 is September 22, 2003 for India and July 1, 2010 for all other countries (except Mexico, China and the Philippines).

Priority dates are not the only reason for immigration delays. USCIS is short of staff and resources are allocated unevenly. This means that some cases are processed much faster than others.

Your cousin may have married a US Citizen. Sometimes those cases are processed quickly, although I really doubt that it took only 2 months. He could also be confused and may have been referring to his employment authorization document, not his “green card”. Or he could be forgetting about part of the process that took longer.

The processing times will vary depending on your location. Since the paperwork is first sent to a central office, where it is checked for completeness and then forwarded to a local office for an interview, it is the case load of the local office that determines how long it will take to get your interview scheduled. For example, in Florida, most cases go from filing to interview in less than 6 months, sometimes as little as 3 and a half months. You may apply for a temporary work permit when you file your green card application. The work permit is not done by the local office. Generally, it takes about 3 months to receive the permit, although they sometimes arrive sooner.

There are several things that can delay your green card. The first is if you file incomplete or incorrect documents. USCIS may just reject then, or may accept the filing, but send you a request for additional evidence. Those requests may also delay the issuance of your work permit. Another thing that can slow down processing is the workload of USCIS officers. If immigration receives a large amount of filings in one area, immigration officers are often moved to that area to handle those filings. That can mean less officers in your area, which means a work slowdown. Another delay in your case can be after the interview. If you are not prepared for the interview, the officer may request a second interview, or may take some time to investigate your case. Sometimes a delay happens because immigration does not complete a background check. Thus, while most marriage based cases get completed within 6 months, there are some cases that take much longer.

If you obtain your green card through marriage to a US citizen, there will still be more immigration paperwork in your case. If you are married for less that 2 years on the day you receive your green card, you will be granted a card that expires in two years (called conditional permanent resident). In the three months period before the card expires, you will have to file a request to extend the card – called a petition to remove condition on residence. That process takes more than 6 months, often a year and in some cases almost two years! It is not a high priority for USCIS, since you continue to be a permanent resident while your application is being processed.

In any case, long waits are quite common in immigration, so don’t despair about the wait, but focus on the quality of the case preparation. A slow approval is better than a quick denial.

Q. I have been a permanent resident for 9 years. I met my fiancée on a trip back to India. We plan to married next year and of course I would like her to come to the United States to live with me here. Our families in India want the wedding to take place there, but will it make a difference to my fiancee’s immigration status? What do I need to do to bring her here?
A, The first thing you need to do is consider becoming a U.S. Citizen. If you have been a permanent resident for at least 5 years, have good moral character and a basic knowledge of US history, you are eligible for US citizenship. The benefit is this: the waiting period for a spouse of a permanent resident to be granted an immigrant visa is currently approximately 4-5 years. During that time, your wife will have to wait in India. The spouse of a citizen is entitled to an immigrant visa immediately (subject, of course to document processing times). So once you become a citizen, you can get married in India and file the petition to bring your wife to the U.S. as a permanent resident. You can also request fiancée visa for your fiancée, which would enable her to come to the U.S. (in a matter of months) and get married in the U.S. You can only petition for a fiancée if you are a US Citizen.

Q. I have been a permanent resident for two years. I need some medical treatment that I would like to get in my home country. I may not come back to the US within one year, as it may take 18 months or so. It’s too early for me to apply for US citizenship, but how do I stay out of the United States for so long without losing my permanent resident status?
A. You best bet is to apply for a Reentry Permit. It looks like a passport and allows you to stay outside the US for up to two years without losing your permanent resident status. Otherwise, you could lose it with an absence of over one year. What the reentry permit does not so, is it does not preserve your residence status for citizenship purposes. In other words, when you return from your long trip using the reentry permit, you will have to wait 4 years before you can apply for citizenship.

Q. I got my green card through marriage to a US citizen. It was valid for two years, and I filed a petition to remove the condition. I am still married and I included copies of our joint accounts and bills. Now I received a letter on blue paper, telling me that I did not send in enough documents to show a real marriage and asking to send more. I don’t understand – we have already hadean interview already with immigration.
A. In your kind of case, requests for additional evidence are very common. It seems that no matter how many documents you send them, they want more. You may want to consult and immigration attorney to help you put together additionaldocumentation. In any case, make sure that you reply, even if to say that you have no moredocuments to send. If you ignore the request, your case will be denied. Even after you send the additionalevidence, there is a good chance that you will be scheduled for an interview, even if you already had one when you first got your green card.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.