Thứ Tư, 04 Tháng Mười Hai 201300:00(Xem: 19389)
If you are in the U.S. and 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 your immigration status is still legal.

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

Other conditions that prevent the 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.

It is important to determine how long the foreign spouse has been out-of-status in the US. If more than 180 days out-of-status and she leaves the US for any reason, she will be subject to a re-entry bar of 3 years. If that is the case, she would be better off remaining in the US and trying to file an I-601 waiver. If the Waiver request is approved, then she could apply for the Green Card.

However, in many cases, the foreign spouse is required to return to Vietnam and apply for an immigrant visa at the US Consulate. If the Consulate denies the visa, then the I-601 must be filed while she is in Vietnam. This is a lengthy process for a spouse of a Permanent Resident. The I-601 must be submitted to US CIS in America and the wait time could be quite long. And, the CIS decision could be another denial.

Some couples in this situation have decided to wait until the sponsor becomes a US citizen. After becoming a citizen, the foreign spouse can apply for an I-601A waiver and this will be decided by US CIS while the spouse is in the US. If CIS issues the Waiver, then the spouse can return to Vietnam to apply for a visa with almost 100% chance of approval.

A key element in the I-601 Waiver application is the ability of the applicant to show that if she does not get her Green Card or immigrant visa, this will cause “ extreme hardship” for their spouse in the US. 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 abroad, family ties in the U.S. and abroad. There is no magic formula and each case must be evaluated on its own individual merits. We’ll say more about Extreme Hardship in a future show.

Q. 1. I am married to a Permanent Resident and I am in the US on an 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 and your spouse would have to be outside the US, in any country, before you could apply for a Green Card.

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 is very short for F2A petitions. If you filed the petition before September, there is no wait at all.

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.

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