CAN THE SPOUSE OF A PERMANENT RESIDENT APPLY FOR A GREEN CARD WHILE IN THE US?

If you are in the U.S., married to a Permanent Resident, and your visa petition is current, can you apply for a Green Card while in the U.S. ?  The answer may be “yes” if you entered the US legally and if your immigration status is still legal.

A Permanent Resident’s spouse can NOT apply for a Green Card if she entered the US illegally, or her visa expired before filing the I-485, or she was employed in the US without Employment Authorization.

Other conditions that prevent the Permanent Resident’s spouse from applying for a Green Card are: 

• she was admitted to the US as a fiancée but did not marry the original sponsor, or 
• she was admitted as a WT tourist, or 
• she was a J-1 exchange student and did not complete with the 2-year foreign residence requirement.

If the foreign spouse is not eligible to apply for a Green Card while in the US, and if she has to return to Vietnam to apply for an immigrant visa, there is a danger that she would be barred from re-entry to the States for 3 or 10 years.  It depends on how long she was out of status in the US.  In the past, many foreign spouses chose to remain in the US and continue to live here unlawfully.

In 2013, CIS introduced the I-601A Waiver Request.  This only applied to the foreign spouses of US Citizens.  However, one of the elements of Mr. Obama’s Executive Action is to extend the I-601A eligibility to the spouses of Permanent Residents.

Soon, the I-601A will be available to the spouse of a permanent resident if there is an approved and current visa petition for the spouse.  The wife submits the I-601A to CIS and if it is approved, she returns to Vietnam briefly for the immigrant visa interview, without fear of a 3 or 10 year bar to re-entry.  With an approved I-601A, visa approval at the Consulate in Vietnam is almost a sure thing.

The I-601A for the spouse of a permanent resident will go into effect a few months from now.  The exact date has not been announced.

To support a waiver request, the foreign spouse would have to show CIS that there would be Extreme Hardship to the Permanent Resident spouse if she could not get a visa, or if the US spouse was forced to return to Vietnam to live with her.

“Extreme hardship” is defined as hardship going beyond that normally suffered by a family when there is prolonged separation.  Extreme hardship can be the result of health issues, emotional and psychological issues, financial issues, country conditions in Vietnam, and family ties in the U.S. and abroad.  There is no magic formula and each case must be evaluated on its own individual merits.

Once again, Mr. Obama’s Executive Action may be helpful in such cases.  The new DHS Secretary DHS Secretary has instructed immigration authorities to provide greater

guidance to CIS officers concerning the factors used in evaluating “extreme hardship”.     This would include not only existing elements of Extreme Hardship, but also

possible presumptions of extreme hardship if the applicant was not approved for a Waiver.  We look forward to more sympathetic guidelines for Extreme Hardship.

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Q. 1.  I am married to a Permanent Resident and I am in the US on a J-1 exchange student visa that requires me to leave the US for 2 years at the end of my visa.  In view of my marriage, will I still have to fulfill the 2 year abroad requirement?

A.1.   If the J-1 visa was issued with the notation about the 2 year requirement, then marriage does not remove the requirement.   You, or you and your spouse would have to be outside the US for 2 years, in any country, before you could apply for a Green Card.

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Q.2.  I’m a permanent resident and I filed a visa petition for my husband recently.   How long will we have to wait until his petition becomes current and he’s eligible for Green Card processing?

A.2.  These days, the waiting time for F2A petitions is much shorter than before.  The wait time would probably be less than two years.

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Q.3.   My husband was in the US on an extended tourist visa.  For a couple of months, he worked at minimum wage for a charitable organization.  Someone told him that it was OK to accept employment with a non-profit agency and he didn't need to get employment authorization from CIS.  Now CIS says he violated the terms of his tourist visa and he cannot apply for a Green Card.  Is this correct?

A.3. Unfortunately, CIS is correct.   The terms of the tourist visa can be violated by accepting any kind of employment without prior permission from CIS.  It doesn't matter who the employer is.