Adjustment of Status with TPS and Matter of Z-R-Z-C

Temporary Protected Status (TPS) is a type of immigration status for citizens of certain countries which have suffered from war, natural disaster, or other significant problems. Although it’s temporary, some countries have been designated for decades. Many people look for ways to become permanent residents if possible.

Sometimes, people with TPS become eligible to apply for permanent residency. Typically this is the result of getting married to a US Citizen or having a US Citizen child turn 21, but there are sometimes other options. These cases can quickly become complicated by the passage of time, the fact that the TPS statute is unique, and because USCIS has been making significant changes especially during the Trump Administration.

Everyone applying for adjustment of status is recommended to talk with an immigration lawyer before filing, but this is especially important for people who have had TPS at some point.

Can TPS holders adjust status in the US?

Many people with TPS have successfully adjusted status to become permanent residents, but not everyone with TPS will qualify to do so. TPS was never intended to allow people to live in the US permanently and the law does not create a pathway for people to become permanent residents after a period of time. Instead, TPS holders must continuously renew their status and face the constant threat that any president could simply terminate TPS for their country, as the Trump administration has repeatedly tried to do.

While not everyone with TPS qualifies, there are some common situations in which people with TPS can adjust status:

  1. Marriage – sometimes people with TPS marry a US Citizen or resident of the US and are able to either apply for adjustment of status or consular process in their home country
  2. Children – once a US Citizen child turns 21, the child can petition for their parent and sometimes they can adjust status in the US
  3. Old Petitions – Another law, INA Sec. 245(i), allows some people with very old petitions filed for them to adjust status
  4. Other – There are many exceptions and less common options that allow people to become permanent residents, and TPS can help prevent unlawful presence and sometimes help people adjust status

Changes to TPS adjustment of status after Matter of Z-R-Z-C

In a significant departure from prior law, USCIS has decided that it will no longer consider people who travel with parole and TPS to have been paroled for purposes of adjusting status. USCIS announced this new rule when it issued and adopted Matter of Z-R-Z-C on August 20, 2020. This decision said that, despite many years of considering people who travel with parole and TPS to have been paroled, USCIS will no longer consider that parole to count for purposes of adjustment of status.

This change is extremely important. Previously, people with TPS could travel on parole and use that new entry to allow them to get residency through a family member, such as a US citizen spouse or child. Traveling with parole not only allowed those with TPS to make temporary trips abroad, but also it provided an entry for them to use to adjust status. Many people have become residents on the basis of a parole in this way.

USCIS is now saying that travel with parole after August 20, 2020, will not give people that same benefit. However, there are two important exceptions. USCIS has allowed people who already adjusted status to keep their residency and will even consider travel with parole prior to August 20, 2020, to still qualify for adjustment of status. USCIS stated that these groups of people had a significant reliance interest in the prior law.

Is this policy change legal? In my opinion it seems completely arbitrary, contrary to years of USCIS interpretation, and legally baseless. As such, I don’t expect the policy to withstand legal challenge, but those cases can take a long time. Because this is a change in policy rather than a change in law, a new president could undo this change quickly and easily.

Resources

Court Halts the Implementation of USCIS Fee Changes

On September 29, 2020, US District Court Judge Jeffrey White issued a preliminary injunction in the case of Immigrant Legal Resource Center v. Wolf, 4:20-cv-05883-JSW. This case was filed by a number of non profit organizations impacted by the increased fees and removal of access to fee waivers which were two of the main features of the new fee rule. A preliminary injunction here prevents USCIS from implementing any portion of the fee rule, but there remains a possibility that the 9th Circuit Court of Appeals could overrule this decision at any time.

What Did the Court Order about the USCIS Fee Changes?

In this case, the judge ordered the following:

Pursuant to 5 U.S.C. section 705 the Court STAYS implementation and the effective date of of USCIS Immigration Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) (the “Final Rule”) in its entirety pending final adjudication of this matter.

Immigrant Legal Resource Center v. Wolf, 4:20-cv-05883-JSW, Preliminary Injunction

How to Respond to the Court’s Blocking the New USCIS Fee Rule

Some people may be tempted not to file before October 2nd now that the fee rule has been enjoined. However, it is still recommend to file before October 2nd in most cases if possible. Many people who were not going to be able to file by then will now gain some additional time to prepare their cases, which is great news.

But those who were planning to file should make sure to do so. There is always a risk that the Court of Appeals for the 9th Circuit could stay this injunction. That would allow it go to back into effect. It has happened with other injunctions in the 9th Circuit during the Trump Administration. As a result, the general advice is to get your application in as soon as you are able to, but to also make sure it’s not missing documents or too rushed, which will increase mistakes.

October 2020 Visa Bulletin Advances Priority Dates Significantly Allowing Green Card Applications

On October 1, 2020, the new visa bulletin will take effect and it contains significant advances for certain categories of green card applicants. Due to travel bans, many people are unable to enter the US and the pandemic continues to keep embassies and consulates closed. Those in the US remain eligible to adjust status, however.

USCIS decides each month which chart from the visa bulletin that will allow someone to file an application for adjustment of status. There are charts for family and for employment based applications. While family based charts have not advanced significantly, some employment based categories have.

USCIS has stated that for October filings, applicants may use the dates for filing chart rather than the final action date chart. This is a big deal because the dates on the filing chart have advanced by nearly five years in some categories, as well as significant advances in others. Take a look at the dates for filing chart from the October 2020 visa bulletin in the employment based category:

EBOthersChinaEL SALVADOR
GUATEMALA
HONDURAS
INDIAMEXICO PHILIPPINES 
1stC01SEP20C01SEP20CC
2ndC01OCT16C15MAY11 CC
3rdC01JUN18C01JAN15CC
Other WorkersC01OCT08C01JAN15CC
4thCC01FEB18CCC
Religious WorkersCC01FEB18CCC
5th Non-RegionalC15DEC15CCCC
5th RegionalC15DEC15CCCC
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html

What Green Card Categories are Impacted by the October 2020 Visa Bulletin?

Here are some short observations about the primary categories that have advanced significantly in the October 2020 visa bulletin:

  • All employment categories are now current for those filing outside of China, El Salvador, Guatemala, Honduras, and India
  • EB1 categories for China and India advanced by nearly two years
  • EB2 for India advanced nearly two years
  • EB3 for China advanced a year while EB3 for India advanced nearly five years

USCIS Is Allowing for Adjustment of Status Applicants to Use the “Dates for Filing” Chart for October 2020

Each month, USCIS decides which dates will be used for those filing green card applications. Generally speaking, there must be a visa available to file for adjustment of status. If not, the application will be rejected. Not only have some important categories advanced significantly in the October 2020 visa bulletin, but also USCIS has decided to allow the Dates for Filing chart to be used rather than the much slower Final Action Date.

What Does the October 2020 Visa Bulletin Mean for Green Card Applicants?

The short answer is that many employment based green card applicants are going to be eligible to file as of October 1, 2020. Because people will be eligible to file using the Dates for Filing chart and that chart has made significant advances, many people are going to receive a welcome surprise and become eligible to file green card applications. This can have other benefits for employment based workers, and applicants are encouraged to consult with an attorney to determine what are the best options for them and their families.

Form I-944 and the Public Charge Rule Return to Green Card Applications

Dollars

The USCIS public charge rule is one of the most confusing and highly litigated rules in the history of the agency. Immigration attorneys will remember that the rule was initially supposed to go into effect in October of 2019, only to be stopped by federal courts. It then entered into effect in February of 2020, but was again stopped by courts in July of 2020. Following another decision by a court of appeals, the rule is back, and effective immediately.

What Happened to the Public Charge Rule and Form I-944?

On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) enjoined DHS from enforcing, applying, implementing, or treating as effective the public charge rule during a declared national health emergency. In response to that decision, USCIS removed the form I-944 from its website and explicitly stated that it was not required when submitting I-485 applications for adjustment of status. This was good news for applicants, is it meant that they did not need to submit hundreds of pages of extra documentation for their cases.

On September 11, 2020, the U.S. Court of Appeals for the Second Circuit granted a full stay of the July 29, 2020, injunction pending the government’s appeal. For a while after this decision, USCIS did not formally respond. However, the USCIS website was quietly updated recently to show that the rule is not only back in effect, but also it is being applied retroactively to all the applications filed during the time the rule was stopped.

This decision is bad news for applicants because it means that any cases filed without the I-944 during the period of time it was not required will likely have to review and submit the form and required documents. Not only is this unfair to applicants who submitted all required documents, it could even effect eligibility in some cases where the family member’s income was near the threshold. No doubt this will generate even more litigation.

What is the Status of the Form I-944 and Public Charge Rule Now?

USCIS is now reimplementing its public charge regulations, effective immediately, and effective retroactively to previously submitted cases. The USCIS website is not transparent at this time but it has been partially updated to explain the new requirements. The most important points are the following:

  • The public charge rule will apply to ALL cases filed after February 24, 2020
  • Any applications for adjustment of status, form I-485, filed after October 13, 2020, must include the form I-944 and all required evidence
  • Filing a form I-485 before October 13, 2020, does not mean that USCIS will not request the form I-944 at a later date
  • Applications approved during the period of time the stay of the public charge rule was in effect will not be modified and should be final

What is the filing fee for an I-765 work permit application based on a pending asylum case?

Work Permit

Many people are confused about the cost of filing a work permit application based on a pending asylum application. There have been a lot of changes and it can be difficult to put them all together, but this guide covers all the important information

Currently, the cost for an initial asylum work permit (Form I-765) is $85. A renewal asylum work permit is $495. This is because the $85 biometrics fee is now required for both application types.

There is one significant exception to this rule. Member of two nonprofit organizations can file under the old asylum work permit rules. That means that if you are a member of those organizations, the fee is going to be less. For someone who is a member of those organizations, the initial asylum-based work permit application is $0, completely free. A renewal application is the old fee of $410.

Read on for some additional information about why this is the case and how to join those organizations mentioned above.

How you can join a nonprofit organization to file under the old asylum fee, processing timeframe, and application deadline

Many people are unaware that a lawsuit could provide some benefits in filing their work permit applications. By joining either “CASA de Maryland” or “Asylum Seeker Advocacy Project (ASAP)” an individual can become part of the “class” of people who are included in that case’s preliminary injunction. USCIS is now providing instructions on its website for the form I-765 work permit application. Read the section “Preliminary Injunction Impacting CASA and ASAP Members.”

You can join those organizations for free and file your work permit application with proof of your membership. You do not have to have been a member of those groups earlier or at the time of the decision. This could change in the future, but work permit applicants should take advantage of this important opportunity for all cases.

Joining one of these groups provides some really significant benefits, including:

  • It requires USCIS to process your application within 30 days
  • It allows someone to file after waiting 150 days since the filing of an asylum application, rather than 365 days
  • You don’t need to pay the $85 biometric fee
  • There are some other situations where people would be ineligible for a work permit that should not apply

All these rules do make the process more complicated, so it is recommended to schedule a free consultation to discuss how an immigration lawyer can help you with the process.

When and why did the price change for work permits based on a pending asylum application?

Immigration attorneys and asylum applicants were preparing for fee increases that were to take effect on October 2nd, but for work permits in particular, an important change happened a little bit earlier on August 25th.

The Department of Homeland Security finalized a new rule on August 25, 2020, which required USCIS to charge the biometrics fee of $85 with all work permit applications, including initial ones. That rule was not part of the larger fee change rule, which was stopped from going into effect by at least two separate courts. There is no timeframe for it to go back into effect and at this point we will likely have to see what the Biden Administration wants to do with the fee changes.

However, the biometric fee was part of the earlier separate rule, and it is still required for those people who are not members of the groups listed above.

What changes were supposed to become effective on October 2, 2020?

As mentioned above, the fee change rule did not go into effect due to severeal federal courts stopping it. However, it may become effective at some point. Typically, USCIS will announce a future date if that were to occur, rather than change fees overnight.

The rule was intended to go into effect on October 2, 2020, but did not. That rule actually reduced the biometrics fee to $30 from $85, a slight savings. However, it increased the work permit fee, resulting in a fee increase overall. The new I-765 fee for asylum work permits was going to be $580 for each applicant (the new I-765 filing fee was $550 and the biometrics fee was $30).

This was supposed to be applied to both initial work permit applications and renewal work permit applications based on a pending asylum case. Why is USCIS imposing a fee for asylum seekers filing initial work permit applications? USCIS provided the reason in the final rule:

DHS acknowledges the concerns of the commenters related to the requirement of a fee ($550) for initial filings of Form I-765 for applicants with pending asylum applications. Initial EAD applicants with pending asylum applications account for a large volume, approximately 13 percent, of the Form I-765 workload forecast and DHS has decided to no longer provide this service for free. Charging initial Form I-765 applicants with pending asylum applications allows DHS to keep the fee for all fee-paying EAD applicants lower. Asylum applicants will pay no more and no less than any other EAD applicant (except for those who are eligible for a fee waiver) for the same service.

https://www.federalregister.gov/documents/2020/08/03/2020-16389/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration

As noted above, this fee change rule is not in effect and so the current fees are as stated at the top of the article.

How to Get a Green Card through Marriage with DACA or Deferred Action

Deferred Action for Childhood Arrivals, known as DACA, does not automatically lead to permanent residency at this time. However, that doesn’t mean that those with DACA don’t have any options to become permanent residents and get green cards. This article reviews some of those options. It’s always best to speak to an immigration lawyer before starting any green card process to make sure you’re on the right path.

Marriage-Based Options for DACA Holders

Many people wonder if marrying a US Citizen or permanent resident will allow them to apply for green cards. Sometimes it does, but every case is different and some people have easier options than others. Two of the most important factors are whether the person with DACA was inspected and admitted, as well as the status of their spouse.

Adjustment of Status for DACA Holders Who Marry

The easiest situation is for someone who has DACA but who previously entered on a visa or was given parole at some point. Many people who have DACA today entered the US as visitors on a B2 visa, border crossing card, or similar status. In doing so, they were “inspected and admitted” and can adjust status in the US if they marry a US Citizen.

Being paroled is different than being inspected and admitted on. Parole is usually granted to people at the border or after applying with USCIS using form I-131. It used to be easier for DACA holders to get parole. Today, in most cases it will be extremely challenging, but it is still possible to request parole before leaving the United States for serious humanitarian reasons. If someone was not inspected and admitted on a visa, but was paroled, they are still eligible to adjust status if they apply through marriage to a US Citizen.

If the DACA holder marries a resident rather than a citizen, they may still have options, but those options are usually more challenging. Most people who were not inspected and admitted or paroled must leave the US to consular process rather than adjust status. But there are some important exceptions. It’s important to check with a lawyer before starting a process.

Consular Processing for DACA Holders Who Marry

Those DACA holders who are not eligible for adjustment of status can sometimes still consular process. Many people prefer to adjust status in the US for many reasons, but it is not always allowed. Consular processing means traveling back to one’s home country to attend a visa interview, after which the case is approved and the person becomes a resident when they reenter the United States.

As mentioned above, most people who were not inspected and admitted or paroled into the US must leave to become residents. In many cases, they will need a waiver due to having spent significant periods of time in the US without lawful status. The most common path is filing an I-130 family petition, followed by an I-601A provisional unlawful presence waiver, and then finally attending the interview abroad.

Waivers are not required for some DACA holders because the DACA status protected them from gaining “unlawful presence.” There are immigration punishments that affect people who overstayed or lived unlawfully in the US, and those are based on how many days of “unlawful presence” they have accumulated. Typically it becomes impossible to leave and reenter after 180 day. Having DACA will prevent those days from counting as unlawful presence for purposes of some immigration punishments. These cases must be reviewed with a lawyer to be safe.

For many other people, a waiver will be necessary because the immigration punishment triggers the moment they leave the US. Unfortunately, waivers can be challenging to obtain, especially for younger couples without children. Waivers involve a high standard of “extreme hardship” which is defined in a way to exlcude many kinds of hardships that couples face when separated. Because the process of obtaining proof for a waiver can be challenging, it’s highly recommended to schedule a consultation and work with an experienced lawyer on waiver cases.

USCIS Extends Deadlines for Certain Types of Immigration Cases

USCIS has been providing flexibility with some deadlines during the pandemic, but that was set to expire on September 11, 2020. USCIS has now provided a last minute extension, which will now apply to all listed requests that are issued between March 1 2020 and January 1, 2021. This should help people who are continuing to encounter problems in obtaining documents for their cases or who are otherwise having difficulty responding to the requests.

It’s important to note that the deadline is not extended until January 1st, but rather a 60 day extension will be automatically applied to the listed requests if they are issued between March 1, 2020 and January 1, 2021. Each individual request will have a different deadline and applicants should make an effort to respond within that extended deadline.

USCIS has stated that deadlines will be extended for:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

Read more at https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-1

USCIS Launches SAVE Initiative Aimed at Sponsors of Immigrants

On September 10, USCIS announced that it was implementing a new initiative called SAVE (Systematic Alien Verification for Entitlements). This initiative is aimed at sponsors of immigrants, which usually includes family filing petitions as well as other individuals who complete affidavits of support at some point during the process of becoming a lawful permanent resident.

The initiative appears to have two goals: one, assisting other agencies with verifying income eligibility for benefits, and two, recovering money from sponsors who agreed to reimburse the government if the individual gets benefits.

Generally speaking, it is uncommon for lawful permanent residents to get benefits because they are not legally permitted to obtain many of the most common benefit types. If a resident does apply for benefits, the government wants to make sure their sponsor’s income is calculated as part of their own, rather than only considering just their income and household size. It is not clear to what extent agencies will actually use this data. It could result in increased benefit denial for those residents who do otherwise qualify for benefits.

It is not immediately clear to what extent the government is going to be increasing enforcement from affidavits of support. It appears seriously burdensome for the government to initiate lawsuits to recover money from sponsors, especially if the benefit amounts are relatively low. There is currently no automatic mechanism by which sponsors affirmatively support or reimburse anyone and the sponsorship requirement has largely been more of a legal requirement for completing the residency process since it was initiated.

More information about the SAVE program is available at https://www.uscis.gov/save

I-212 Conditional Waivers of Deportations, Advance Permission to Apply for Admission

waivers are key to many immigration cases

I-212 conditional waivers are a special type of waiver used in limited circumstances, rather than to forgive all deportations generally. The waiver essentially allows someone with an order of removal to get a pre-approval to return to the US despite a legal bar to reentry. It is somewhat uncommon and there are some significant exceptions where it may not be a good option for everyone.

What is the I-212 Conditional Waiver

The I-212 is a form used by applicants to requests various types of relief from immigration punishments, whether those are called “waivers” or “advance permission to reapply.” The essential part is that they allow a person to shorten or eliminate a punishment they have received, usually on the basis of having good behavior, a qualifying relative, and other positive factors.

In the I-212 conditional waiver context, applicants are requesting relief from an order of removal (often called deportation) which has not been executed. That means that a judge ordered that a person be removed but they were not actually removed. Other options may be available to someone who was actually removed.

The I-212 waiver allows someone to get permission in advance of their actual departure from the US (which triggers the actual punishment) to receive “consent to reapply for admission” and shorten their time abroad. This is one step in a multi-part process, which generally requires an I-130 family petition, an I-212 waiver, an I-601A waiver, and then consular processing.

The I-212 conditional waiver is established in 8 CFR Sec. 212.2(j), which reads:

“(j) Advance approval. An alien whose departure will execute an order of deportation shall receive a conditional approval depending upon his or her satisfactory departure. However, the grant of permission to reapply does not waive inadmissibility under section 212(a)(9)(A) of the Act resulting from exclusion, deportation, or removal proceedings which are instituted subsequent to the date permission to reapply is granted.”

This conditional process was implemented by rule in 56 FR 23212 on May 21, 1991. After new unlawful presence bars were introduced, this conditional process was not always useful because the applicant would still be inadmissible and need a waiver abroad. It become more relevant following the introduction of the provisional unlawful presence waiver process, and later the Expansion of the Provisional Unlawful Presence Waivers of Inadmissibility which became effective on July 29, 2016. This rule describes the process and DHS’ reasons for implementing it in this way.

Deciding if the I-212 Conditional Process is the Correct One

It’s extremely important to understand the benefits and limitations of the I-212 conditional waiver process. When someone has an unexecuted order of removal, they are at risk of actually being detained and removed at any moment. Not everyone is going to enjoy the benefit of getting a waiver in these circumstances. Furthermore, the waiver does not waive everything. Many people have other problems that run alongside the issue solved by this process.

The ILRC has issued an excellent practice advisory that covers these topics in extensive detail, and which serves as a guide to figuring out whether the I-212 conditional process is the best one for a particular case. Some important considerations are:

  • What is the risk of detention and does the person have a plan if they are detained?
  • Was the person removed in-absentia, which would likely result in denial?
  • Are there other grounds of inadmissibility beyond a simple removal order and some unlawful presence, including criminal history, medical issues, smuggling, misrepresentation or fraud, false claims to citizenship, among others?
  • Does the applicant have good bona-fides and a realistic chance of approval?
  • Is the applicant willing to leave the US to consular process?

It is highly recommended to work with an immigration lawyer in cases like these because there are serious risks and technical challenges.

USCIS Memorandum on Changes to the DACA Program, Termination of Initial DACA Applications

Changes to the DACA Deferred Action for Childhood Arrivals Program

On August 24, 2020, USCIS made an announcement and issued a memorandum explaining how DACA initial and renewal applications will be treated going forward. For the most part, the new memorandum maintains the status quo we have been under for the last several years. There are some good and bad changes depending on the case, but the worst part is that USCIS will be rejecting and ending initial DACA applications, even when submitted before the date of the memorandum.

How Has the DACA Program Changed?

The memorandum lays out several important changes, listed here:

  • All initial DACA applications will be rejected, and refunded
  • USCIS will continue processing renewal requests
  • New work permits under DACA will be for one year, rather than two
  • USCIS will not revoke existing work permits for issues which changed based on this memorandum
  • Reject any I-131 advance parole requests for DACA recipients except in situations of exceptional circumstances
  • Any approved advance parole requests will be honored for the duration of their validity
  • USCIS will honor the information-sharing policy as set out in the DACA FAQ and Napolitano Memorandum
  • USCIS will be implementing a strict 150-day policy and not honoring renewal requests if they are submitted more than 150 days before the expiration date. USCIS recommends filing more than 120 days before the expiration date.
  • USCIS explicitly acknowledged that it attempts to approve DACA work permits closer to the expiration date of the prior DACA period, which is not a bad thing especially if they will only be issued for one year.

DACA Initial Applications Rejected

The worst news is that all the pending initial applications for DACA, especially following the Supreme Court’s decision and up to the date of the memo, are going to be rejected or terminated. This action is likely illegal. Since the Supreme Court’s decision, or perhaps a bit later, the only DACA guidance in effect has been the original 2012 memorandum and FAQ which established the program. USCIS has arbitrarily decided to simply sit on new DACA initial applications and not even to process the fees, much less the applications.

While USCIS does get to set certain rules, they cannot flout their own policy guidance. Those individuals who had filed DACA initial applications should consider bringing lawsuits under the Administrative Procedures Act. If the struggles of the Trump Administration has proven one thing, it’s that you can’t sit and wait for USCIS to make the right decision. The only way to force the government to obey the law is through Congress or the Courts. Congress is not likely to make any changes this year, and so it falls to individuals to bring lawsuits to protect their rights.

Advance Parole is Still Available

Some good news from the memo is that advance parole is still available, although the standard seems to be getting higher. USCIS notes that advance parole for those individuals who only have DACA is an “extraordinary privilege” and that they should be assessed in keeping with other parole requests under INA Sec. 212(d)(5), which is going to be higher than previous DACA advance parole standards. The memo mentions that employment, visiting family, and vacation are not valid reasons. Some examples of valid reasons include:

  • Travel to support national security and federal law enforcement interests
  • Travel to obtain essential life-supporting medical treatment not available in the US
  • Travel to support the immediate safety, well-being, or care of an immediate relative, but especially minor children

From Marriage to Green Card: How the Family Immigration Process Works

Family and Marriage Green Card Applications

Many people assume that being married to a US Citizen or a Lawful Permanent Resident (green card holder) will allow them to get green cards as well. Fortunately, many people are able to become residents through marriage, but not everyone. This article discusses some of the common situations that might come up in these circumstances. Every case is different, though, and there’s no reason not to schedule a free immigration consultation to review a specific case.

Green Cards Through Marriage to US Citizens

Marriage to US Citizens often results in the simplest process. This is because the law provides several special benefits to spouses of US Citizens, including immediate visa availability, less strict rules about unlawful presence in the US as well as unauthorized employment, and the ability to adjust status even without lawful status.

Visas are available to spouses of green card holders immediately because they are classified as “immediate relatives.” Simply put, immediate relatives don’t have to wait for a visa (they do still have to wait for the government to process their paperwork). The downside is that they cannot include a derivative in their own application. This sometimes results in confusion when a US Citizen files a petition for a spouse but not their children. Including the names of children in a petition does not necessarily mean they are included as derivatives. Each immediate relative must have their own I-130 family petition.

Less strict rules also make the process more simple. The spouse of a US Citizen can get a green card even if they are unlawfully present in the US (typically by overstaying a visa), worked without authorization, and are not currently in lawful status. Spouses of residents don’t get these important benefits. This is not to say that all immigration punishments are forgiven against spouses of US Citizens, as there are many situations where a spouse might need a waiver or might be completely ineligible.

One common situation that can prevent a spouse from becoming a resident in the US is having entered without permission. In most cases, to adjust status and become a permanent resident, a person must show an entry with inspection and admission. They must usually present a visa or valid I-94 at the border and then be permitted to enter. If they didn’t they will want to review the options with an experienced attorney. Some people are eligible through the existence of an old petition, eligibility for Parole in Place for family of military members or veterans, and some other less common options.

If these exceptions don’t apply, most spouses need to consider consular processing, which involves finishing the process outside the United States. In many cases, people need to obtain a waiver before they can be given a visa and return to the United States as a resident. It’s always important to review waiver cases due to the risk of being stuck outside the US.

Green Cards Through marriage to Lawful Permanent Residents (green card holders)

Another common situation is that a lawful permanent resident will marry and want to file for their spouse. These cases often get more complicated because spouses of lawful permanent residents are not given the same rules as spouses of US Citizens. The top problems are visa availability delays, unlawful presence, unlawful status, and unauthorized employment. One common strategy is to try and get the resident to naturalize and become a US Citizen, if eligible.

Spouses of residents are under the visa bulletin category “F2A” which is named after the section of the law describing the different categories. At this moment, F2A is current, meaning that visas are available already. In prior years, the delay has been around a two year wait. This means that people had to wait over two years simply for the visa, not to mention the other delays in immigrant visa processing. If there is a waiting period for the F2A category it causes lots of problems. For one, to apply for adjustment of status in the US, the visa needs to be available according to USCIS. Combined with the requirement to maintain status up until the time of filing, this prevents some people from becoming residents through adjustment of status.

Immigration violations can be very serious for spouses of permanent residents. US immigration law says that if someone has ever had unlawful status, or ever worked without permission, they cannot adjust status. This comes up frequently because many visas, such as a B-2 tourist visa, are only issued for six month intervals. Filing for adjustment of status without having a lawful status, or when in some quasi-status like a pending asylum application, can make the process challenging or impossible.

Fortunately, there are multiple ways to get a green card, and spouses who are prevented from adjusting status can often consular process in their home country. In some cases, the spouse will need a waiver. Some waivers can be pre-approved by USCIS to lessen the period of separation abroad.

One benefit to filing as the spouse of a resident is that children can be included. The F2A category allows for dependents, such as unmarried children under age 21. Sometimes, even children over 21 are allowed to continue under the Child Status Protection Act. This ability to include dependents can save some money since only one petition is required.

Adjustment of Status Versus Consular Processing

There are two options for becoming residents and this can be confusing at first. Many people choose to adjust status in the US, but in some cases consular processing is a better option. Additionally, adjustment of status is often unavailable, leaving consular processing as the only choice.

Adjustment of status has strict requirements that preclude many people. They can’t have entered unlawfully in most cases, which prevents many with DACA and many who were brought to the US as children from using it. It’s also a common issue for parents who have US Citizen children who are over 21, yet who entered without permission. Sometimes, immigration waivers are possible here.

Consular processing is usually not desirable but it is a reality for many cases. Additionally, some people prefer to consular process. The main reason is that adjustment of status doesn’t allow easy travel. USCIS is taking 5-6 months to even issue travel permits, meaning that someone has to stay put for that entire period of time or abandon their application by traveling. Consular processing allows frequent travelers to leave when they need to, but it can be hard to predict when the interview at the embassy or consulate will actually occur. Additionally, having left the US one might have trouble re-entering if they are considered to have immigrant intent. This is a common reason that entries are denied, because most nonimmigrant visas only allow temporary travel.

Consular processing is also a bit cheaper. For example, completing an adjustment of status under today’s prices for a spouse costs about $2,160 while consular processing costs about $1,725 (medical exams are the large variable here). USCIS price increases on October 2, 2020, will make the divide even greater. The difference is bigger for families. A resident bringing a spouse and two young children to the US will have to pay about $4,460 for adjustment of status, whereas consular processing would cost about $3,215. The main differences there are having to file multiple expensive adjustment of status applications versus relatively cheap visa fees, as well as medical exam prices being higher in the US.

US Citizenship Office in Austin – Is There a USCIS Office in Austin, Texas?

USCIS

US Citizenship and Immigration Services (USCIS) operates many offices across the United States and even internationally. You can check for the nearest USCIS Office at https://egov.uscis.gov/office-locator/. As of today, USCIS does not have an immigration office in Austin, Texas, despite many immigrants living in the area.

There are many USCIS offices in Texas. Most people living in Austin, Texas, have to travel to San Antonio, Texas, for USCIS services. For example, US Citizenship applications filed by those living in Austin, Texas and surrounding cities will have their interviews scheduled in San Antonio, Texas. Perhaps someday USCIS will open an office in Austin, but there are already USCIS offices in San Antonio, Dallas, and Houston, which may make that a lower priority for USCIS.

ASC Biometrics Appointments in Austin, Texas

Many immigration applications require biometrics, which are just fingerprints and photos, and these appointments can be done in Austin, Texas. It’s best to follow the instructions on the biometrics appointment letter, also called an ASC Appointment, for the acronym Application Support Center. USCIS contracts to provide biometrics services at the ASC in northwest Austin, located at Parkline Plaza Shopping Center, 11301 Lakeline Boulevard, Suite 150, Austin, TX 78717. Fortunately, that means that most people don’t have to travel to San Antonio for fingerprints.

Scheduling In-Home Visits from USCIS or for Biometrics for Individuals Who Need Accommodations

Traveling to San Antonio can be a real hardship for some people. There are extreme circumstances where someone can actually request both biometrics and USCIS interviews to be conducted in another location, even in one’s own home. They do this, for example, for people who are disabled and unable to travel, or who would suffer serious hardships to travel. Requesting this kind of accommodation can delay a process but it’s an important option for people in that kind of situation.

To schedule such an accommodation it may be best to contact USCIS directly at the USCIS Customer Support number: 1 (800) 375-5283.