Immigration Q & A April 2015

Author by Edward Boreth

Q. I would like to get married to my fiancée in India. I am a US citizen. What is the best way to bring her here?

A. You have several options. First, you can apply for a fiancé visa (K1) for your intended, if you have seen her within the last two years. Once your fiancée receives the visa, she may enter the US for 90 days and must get married to you within those 90 days. After that she may file for adjustment of status here in the US to become a permanent resident. Second, you may travel to India, hold the wedding there, and one you are married, file a family petition to bring your wife to the US. The petition is filed in the United States, but the approval is sent to the US consulate nearest her city of residence, where she will have to have an interview to pick up her immigrant visa. Lastly, if your future wife is in possession of a visitor’s visa, or another nonimmigrant visa (but not a crewmember visa), she may enter the US and have the marriage take place in the US. Afterwards, you would file a family petition for her and she would simultaneously file an application to adjust status in the United States, all without leaving the US. She would receive an interim work authorization, and you will both be scheduled for an interview to determine the veracity of your marriage and her eligibility to become a permanent resident.

Q. I received my permanent residence through marriage to US citizen. My green card was issued for two years. It will expire in four months. I was told that I need my husband’s consent to extend my card, but things have not gone well in our marriage. We are having problems, and I am worried that he will not agree to help renew my card. What shall I do?

A. 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, the requirement if that both you and your husband file it jointly within the last three month window 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 friend has a factory in outside the US. He wants to open a business in the United States to import and distribute the products here. Does he need to get a special visa to open the business in the US and work here?

A. Your friend may be able to get an L­1 visa. The L­1 allows for managers and executives to transfer from a foreign company to a US branch, subsidiary, affiliate or parent of the foreign company. Your friend must show that he has worked for the company in India in managerial or executive capacity for at least one year in the last three years. He must also show that he is coming to the US to work in a managerial or executive capacity for the US company and that the US company has established an office in the US. Your friend may also qualify for the investor visa. The requirements for both visas are very specific, so your friend should consult a qualified immigration attorney as early in the planning stage as possible.

Q. My father has lived in the United States for 20 years. He is a permanent resident. He is 53 years old. He would like to apply for citizenship, but we do not think that he will pass the English test, even though he has taken classes. Can he get his citizenship?

A. First, in order for your father to apply for citizenship, you need to determine that your father has been a permanent resident for at least five years. If he has been a permanent resident for the entire 20 years that he has lived here, he can take the civics test in her native language (since he is older than 50). If he has been a permanent resident for more that 15 years, but less than 20, he will have to wait until he turns 55 to be able to take the civics test in her native language. If he has been a permanent resident for less than 15 years, the only way he could avoid the English and Civics test is by demonstrating that he has a disability or mental impairment that prevents him from learning English. He would need to have her doctor fill out and sign Form N­ 648 requesting an exception to the English testing requirement. Not all disabilities or medical conditions are considered an impairment to learning English. The doctor must evaluate the effect of the disability or medical impairment on the applicant’s ability to learn, and must explain exactly why the medical condition prevents the applicant from learning English.

Q. My employer recently filed an I­140 for me. I also applied for adjustment of status. Both applications are still pending. My fiancé is here on a student visa. We are planning a wedding date. Is it better to wait until I get my green card to get married?

A. Actually, your fiancé will become a permanent resident much faster if you marry him before your green card is approved. Once you are married, she can file his application to adjust status as your dependent and it will be adjudicated concurrently with yours (or maybe several months later, but he will still receive employment authorization while his case is pending). If you wait to become a permanent resident, you will have to file an I­130 family petition for your (future) husband. Since there is a quota on spouses of permanent residents, he will have to wait years until he can become a permanent resident, with no employment authorization while he waits. He will not even have the right to be in the U.S. based on the pendency of your petition, until it is approved and a visa number becomes available.

Your future husband may also apply for temporary employment authorization and a temporary travel document. After you have sent in all the paperwork and the filing fees, USCIS will send you receipt notices for all the forms. Then your husband will receive an appointment notice for her biometrics. Than means fingerprints and a photo. You will then get an interview appointment with USCIS. You will both need to go to the interview and bring evidence that your and your husband really live together and that the marriage was not just for the green card. If you pass the interview and your husband does not have any bars to adjustment, such as a criminal conviction, he will be granted permanent residence and will receive his green card in the mail.

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 20 years. He is a director of the Citizenship Clinic. He is also an avid cricket fan.