— By Susan E. Hill, June 21, 2016
We frequently hear this request when handling family-based cases. U.S. citizens and lawful permanent residents can petition certain relatives for a green card, but there can be waiting lists and delays while the paperwork is pending. Altogether, this means that the relative can wait for months, years and even decades before having a green card in hand. In the meantime, you all are trying to plan life around this lengthy process: where to live and work, and freedom to travel. Here are three common factors which affect case strategy:
- Moving to the U.S. while waiting for the green card For those located outside the U.S., only fiancé(e)s and spouses of U.S. citizens can get a “K” visa to come and live in the U.S. while waiting for a green card, but it is a lengthy process. All others must use a temporary nonimmigrant visa or the Visa Waiver Program (ESTA) if they want to visit the U.S. while waiting. However, the relative could encounter rejection at the U.S. border if a green card petition is on file, because it indicates an intent to live in the U.S. instead of a temporary visit. This rejection could result in a charge of fraudulent intent, or even deportation and being barred from future entry to the U.S. for a period of five years or longer. This is known as inadmissibility and may require a waiver to repair.
- In the U.S. with a visa, but the I-94/visa is expiring Once paperwork is filed for a green card, it does not automatically grant permission to live in the U.S. Your relative will need to obtain and maintain lawful immigration status through a separate nonimmigrant visa or other means. Overstaying a visa or otherwise violating immigration status could be harmful. However, some relatives who qualify for adjustment of status to permanent residency may choose to wait in the U.S. beyond expiration of an I-94/visa, but this decision could carry some risks which you should discuss with an attorney.
- Adjustment of Status allows work and travel while waiting Relatives who lawfully entered the U.S. or who qualify for 245(i) provisions may be eligible to apply for adjustment of status if they are still inside the U.S. Applicants for adjustment of status qualify for a work permit, and can qualify to obtain permission to travel.
For more detailed information, learn more on our website and read our newsletter issue about Family Immigration (Part 1).
This blog includes general information about legal issues and developments in the law. It is intended for informational purposes only and must not be taken as legal advice on any particular set of facts or circumstances. Contact a lawyer licensed in your jurisdiction for advice on specific legal issues and problems.