If you want a Green Card through your U.S. citizen husband, wife, fiancé, child, brother, sister, mother, or father there are many options to discuss with your immigration attorney. Not all family relations qualify for Green Cards, and not all that qualify process by the same procedures or at the same pace. Also, there could be issues with timing, work authorization, or interplay with your other immigration status that warrant a serious consultation with your immigration attorney.
Who Can Get an Immediate Relative Green Card?
Immediate Relative Green Cards can be obtained for:
- spouses of U.S. citizens,
- children (under 21 years of age and unmarried) of U.S. citizens, and
- parents of U.S. citizen children who are at least 21 years of age.
What If I’m Not an Immediate Relative of a U.S. Citizen?
If you’re not one of those immediate relatives, you may fall into one of the Preference Categories, which include spouses and unmarried children of Permanent Residents, and also married or adult (21 or older) children of U.S. citizens and siblings of U.S. citizens. The “preference” family members qualify for their own Green Card, but they do not benefit from the immediately available visa number. In other words, they will have to wait between applying for their own Green Card, and adjusting into the Green Card status. The current wait time can be found on the DOS Visa Bulletin. Depending on the timing of your relationship with the Green Card holder, and how that person obtained their Green Card, you might also qualify for “follow to join” benefits.
What are the Benefits of Being an Immediate Relative to a U.S. Citizen?
Spouses, parents, and children (under 21) of United States citizens, unlike those in the preference categories, enjoy immigration benefits such as: (1) the ability to file concurrent Petition and Adjustment of Status application, and (2) the availability of an interim Work and Travel card if forms are filed properly.
- Concurrent Adjustment of Status (AOS) with Immigration Petition
There is no limit on the amount of Immediate Relative of U.S. citizen visas the U.S. government can issue per year, so Immediate Relatives do not have to wait for an available visa number from the Department of State to adjust their status. For more information on the overall process to obtain your Green Card, see Adjustment of Status (AOS).
This means that Immediate Relatives of U.S. citizens can wait here in the United States of America with their U.S. spouse, parent, or child while the Green Card is processing because they can file their I-485 (Application to Register Permanent Residence or Adjust Status) at the same time their spouse, parent, or child files the family-based petition.
The major benefit of Adjusting Status for immediate relatives is only available if the foreign immediate relative’s last entry into the United States was with inspection. In other words, a person can only Adjust Status if they crossed the border legally in any category, even if that person then overstayed their status. For those whose entry to the U.S. was without inspection (illegal border crossings for example), the Adjustment of Status procedure is not available. If you did not enter with inspection or you snuck across a U.S. border, see Unlawful Presence.
- Able to Adjust Status despite unlawful work/presence as long as Entrance was Legal
A major benefit of the Immediate Relative category is that you are allowed to apply for Green Card status through the Adjustment of Status Process as long as you entered the United States legally. This means that if a person in the Immediate Relative category crosses the border legally but overstays their status (never goes home) then they can still Adjust Status despite any unlawful work or presence. Aliens whose last entry was by illegal border crossing do not enjoy this benefit, even if they are immediate relatives of U.S. citizens. If this is the case, call your attorney now to discuss waiver options.
- The Immediate Relative category’s benefit of Adjustment of Status despite unlawful work/presence requires that the applicant was inspected and admitted by a U.S. border officer at their last entry. This applies whether the applicant flew or drove across the border. Also, “inspection” includes any official check during your admission, ranging from an interrogation and search of your belongings and devices to a casual review of your documents. Any inconsistent statements or lies during a border crossing can result in immigration consequences, but for purposes of AOS eligibility the big disqualifying lie is a false claim to U.S. citizenship.
- Interim Work and Travel card
If your last entry was legal, even if you overstayed or violated certain other terms of the visa, you can Adjust your Status upon petitioning as an Immediate Relative of a U.S. citizen, and you will also be able to obtain work and travel authorization to hold you over while the long Adjustment of Status process is pending.
Government processing has recently taken upwards of a year between filing the family-based petition to getting the green card in hand. If filed properly, Immediate Relatives will receive a temporary card that serves two purposes; employment authorization document (EAD) and advance parole travel authorization. This card is typically issued approximately four months after the application is submitted, with processing times varying. Be aware that the EAD card is only good for a year you should start the renewal application 4-6 months before it expires if you want to avoid any gaps in your work or travel authorization. This is often necessary as the overall Adjustment of Status process can take more than a year.
- Travel Authorization
The temporary work and travel card issued while your Adjustment of Status pending will allow you to travel on Advance Parole, or permission to travel without disrupting your Adjustment of Status application. The I-485 Application to Adjust Status must be filed while inside the U.S. If a person with a pending I-485 departs the U.S. that is considered an abandonment of the application. In other words, you would have to start the process over again next time you entered the U.S. in some other class, or you would have to process your Green Card while waiting outside the U.S. Alternatively, you can apply for your advance parole card and use that document to travel, essentially allowing you to depart and reenter the U.S. without abandoning your application.
- Employment Authorization
The work authorization on your temporary work and travel card will allow you to work for any employer, and is an acceptable document to demonstrate work authorization for I-9 verification purposes. Be sure to call your immigration attorney before changing jobs to ensure that it won’t affect any of your pending matters.
This card expires after a year and should be renewed early just like the travel authorization, but you can relax a little here because there is an automatic 180-day EAD extension that you will qualify for as an Adjustment applicant as long as your extension is filed before your current EAD expires. Please note that this automatic extension during the renewal period applies only to work authorization, and not to the advance parole travel authorization. Again, your travel authorization will not remain valid during the time the renewal is pending. Also beware that last-minute renewal of your work authorization, though subject to the automatic 180-day extension, can still result in other complications while the renewal is pending. For example, state motor vehicle agencies sometimes won’t provide a driver’s license without valid card in spite of the 180-day extension.
What Evidence do I Need to Submit with the Forms?
The Immediate Relative green card Adjustment of Status application process requires the submission of the correct forms, filing fees, biographical documents (passport, visas, etc.), passport sized photos, I-693 Medical Evaluation, and evidence to demonstrate the underlying relationship. This evidence can be straight forward for children or parents, who need to submit their long form birth certificates (with translation if necessary) in order to show the relation. The evidence, and the government scrutiny, is more complex for marriage-based petitions and adjustment applications.
How Can I Get the Process Started?
Contact me now for free consultation regarding the evidence you should submit with the forms, and the timing of the whole process. There are a lot of considerations in this process, but a lifetime of benefits if done properly. An immigration attorney will tell you what to expect and will ensure that your case is strong and filed correctly.