Immigration Q & A April 2013

Author by Edward Boreth

Q. I am a US Citizen. My mother just got her green card. What is the best way for my 27 year old my brotherto come to the US ?

A. If your brother is married, your mother cannot apply for him until she becomes a US Citizen. If your brother is not married, both you and your mother can apply for him. The current wait for green card holders petitioning for their children over 21 is about 8 years. In 5 years, your mother will be eligible for US citizenship and if she becomes a citizen, your brother’s wait time will be shortened by about one year. The wait time for siblings applying for siblings is about 10 to 11 years.

All wait times may change. If more people file family petitions, they may get longer. If Congress passes an immigration reform bill, it may contain a provision to shorten the wait times.

Although the wait time is shorter for your mother to apply for your brother, you should also file a petition for your brother. If your brother r gets married before your mother becomes a US citizen, your mother’s petition will become invalid. If your mother cannot get her citizenship for whatever reason, you would be dooming your brother to choose between marriage and coming to the United States. If you apply for him, he may have to wait longer, but he can marry, and his wife will be able to immigrate with him.

Q. I have my green card for 8 years, but I travel frequently on business. Can I apply for my citizenship?

A. The citizenship requirement you are asking about is the physical presence requirement. The simplest way to see if you fall under this rule is to add all the days that you have been outside the United States (in the last five years). If the number is greater that 912 days (half of the five years), you do not qualify for citizenship. If the number is less than 912, you must see if you have any trips abroad that were longer than one year. If so, you can only file four years after you returned from that trip. If any trip was greater than six months, but less than one year, you may have to provide evidence that you did not abandon your residence in the United States. This could be tax returns, proof of payment of rent or mortgage, bills or other evidence that you maintained residence here in the US.

Q. I received my permanent residence through marriage to a US citizen. My green card is for two years. It will expire in six months. I was told that I need my husband’s signature to renew my green card, but our marriage is not doing well. My husband has become abusive and we are having problems. I am worried that he will not agree to help renew my card. What can I do?

You are considered a conditional permanent resident. To extend your card, you need to file a petition to remove the condition on your card. Generally, both you and your husband must file it jointly during the last three months of your card’s validity. You must enclose proof that you and your husband have a valid marriage and are still living together. If your husband refuses to file a joint petition, you have two options. If your husband has abused you physically or has subjected you to extreme mental cruelty, you may file the request to extend your residence without your husband’s signature, as long as you have proof of the abuse through either a police report or a psychological evaluation. In this case, you must still be married when filing. If there was no abuse, you may file without your husband’s signature only if there has been a divorce, and you must provide evidence that you entered into the marriage in good faith, and not to evade immigration laws, but that the marriage deteriorated due to circumstances beyond your control.

Q. My mother was a green card holder, but traveled back to India a few years ago, and has not returned to the US because she was being treated for a medical condition there. Unfortunately we did not renew her re-entry permit. It has been a few years since it expired. Can my mother revive her green card and get her permanent resident status in the US again? I am a permanent resident of the US and have been here for 3 and half years now. My mother’s green card was originally applied for by my sister, who is a citizen of the US. Is this possible and if so how I can go about doing this? Can I apply for her?

A. If your mother was outside the US for more than one year (without a valid reentry permit), she is considered to have abandoned her residence. There is no way to “revive” it. Your sister would have to apply for her again. You cannot apply for her because a permanent resident cannot apply for a parent. Only a US citizen can. However, you can apply for your US citizenship 4 years and 9 months after receiving your green card. It looks like you only have about 1 year and 3 months to wait. The process itself can take 3 to 6 months. So, in about one year and a half, you would be able to file for your mother.

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.