3 Different Ways to Permanent Residence Based on Marriage

Many of my clients are persons who are either engaged to be married, or are already married.  Usually, one of the persons is a U.S. citizen or lawful permanent resident of the United States, and the other person is a citizen of another country and would like to obtain lawful permanent resident status in the United States.

For many persons, there are generally 3 different ways to move forward in the process of obtaining permanent resident status.

Fiance/Fiancee Visa:  For persons who are not yet married, one option is an application for a fiance/fiancee visa.  Please note that only U.S. citizens may file a fiance/fiancee visa petition.  The fiance will attend a visa interview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the fiance travels to the United States, and then must marry the U.S. citizen petitioner within 90 days of entering the United States.  If they do not marry, then the fiance must depart the United States.  As soon as they marry, then the fiance may apply for permanent resident (green card) status.

Immigrant Visa:  Another option is for the persons to legally marry, either in the United States or in any country in which the marriage may be legally performed.  After the legal marriage, the U.S. citizen or lawful permanent resident spouse files a petition for his/her spouse.  The spouse will attend a visa nterview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the spouse travels to the United States and enters with the immigrant visa.  The date that the spouse enters the United States is the date that the person becomes a lawful permanent resident (green card status).

Adjustment of Status:  A third option, for certain persons who are present in the United States, is for a married couple to apply for adjustment of status in the United States.  “Adjustment of status” is a term that means that the applicant is applying to become a lawful permanent resident of the United States while the person is in the United States.  This procedure, if successful, means that the applicant does not need to attend an interview at a U.S. Consulate outside the United States.

Each of these three options has certain advantages and disadvantages.  Moreover, each of these options is only available to certain persons who meet the requirements and for whom the option is beneficial to them.

I have considerable experience with each of these 3 pathways to lawful permanent resident status.  I would be glad to communicate with you about these options.

Case at the U.S. Court of Appeals for the Sixth Circuit

On October 14, 2015, I will be in Cincinnati, Ohio to present an argument in a case before the U.S. Court of Appeals for the Sixth Circuit.  The case involves issues related to a criminal conviction, and whether the conviction is an “aggravated felony” under the Immigration and Nationality Act.  My client in this case was a Permanent Resident of the United States since he was a young teenager.  While living in California, he and his girlfriend had sex.  My client ended up being convicted of having had sex with his girlfriend when she was younger than 18 years old, at which time he was more than 3 years older than she was.  My client and his girlfriend engaged in sex that was purely consensual.  There was no force, and no threat of force, involved.  My client was convicted under a statute in California that requires simply that the younger person be younger than age 18, that the other person be more than 3 years older, and that they had sex.  This is a statute that is sometimes referred to as “statutory rape,” although there was no “rape” involved at all.

In California, the age of consent for purposes of “statutory rape” is 18 years old.  Only about 11 states set the age of consent at age 18.  California joins Florida, Virginia, and 8 other states at setting the age of consent at 18.  Some of these states additionally require that, in order to be convicted, the older person is at least a certain age, and/or that the age difference be at least a certain number of years.  For example, Florida requires that the older person be at least age 24.  If not, the person would not be convicted of the offense.

As for the other 40 states and the District of Columbia, the age of consent for the younger person is either 16 or 17.

As a result, my client’s conduct would not even be a crime in at least 43 states and the District of Columbia.  Yet a U.S. immigration judge, and the Board of Immigration Appeals, ruled that his conviction is an aggravated felony for purposes of immigration law.  My client has been removed from the United States.

At the U.S. Court of Apeals for the Sixth Circuit, I am arguing that my client’s conduct is not an aggravated felony.

What are the chances for immigration reform?

Now that the Senate has passed a comprehensive immigration reform bill, the House has the opportunity to address the issue.  What will the House do?

 It appears that, in the short term, there is little political incentive for House Republicans to pass comprehensive immigration reform.  Of the 435 voting members in the House of Representatives, Republicans hold 234 seats, while Democrats hold 201.  As Janet Hook reports in the Wall Street Journal, of the 234 Republican members of the House, only 38 Republican members represent congressional districts that have Latino populations of 20 percent or higher.  And only 28 Republican members face even a small risk of a serious challenge by Democratic candidates in the 2014 House elections.  As a result, it seems that, for now, House Republicans would have little to gain politically by voting for an immigration reform package.  Moreover, many House Republicans would stand to face criticism from their congressional districts and possible election challenges from more conservative candidates, if they were to vote for a comprehensive immigration package.

 Long-term demographics, however, may play a role in the voting decisions of some House Republicans.  It appears that some states, including Texas and Arizona, that currently tend to vote for Republicans in local, state, and national elections, will likely be shifting over time towards electing Democratic candidates.  If, and when, such shifts will occur is anybody’s guess.  But some House Republicans might take these factors into account and consider the increasing electoral clout of Latinos and other immigrant groups.  Although currently most House Republicans face few serious electoral challenges from Democrats, they likely will face such challenges in the next 3 to 5 electoral cycles.

 For now, it is impossible to predict whether or not the House of Representatives will pass comprehensive immigration legislation.  It is also impossible to predict whether, if the House passes legislation, the Senate and President Obama will agree to sign such legislation.


USCIS to review visa petitions by same-sex spouses

DHS Secretary Janet Napolitano has directed USCIS to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

In light of the U.S. Supreme Court’s decision to strike down the Defense of Marriage Act (DOMA) as unconstitutional, Napolitano ordered USCIS to implement the ruling “swiftly and smoothly.”

If you are a U.S. Citizen or Lawful Permanent Resident, and you were lawfully married to a person of the same sex in a jurisdiction that legally recognizes same-sex marriage, then you may file and I-130 Petition to begin the green-card process for your same-sex spouse.  USCIS will review your petition and will make a decision using the same procedures and rules that are used to review petitions filed for opposite-sex spouses.

If you and your same-sex spouse were lawfully married in a place that legally recognizes same-sex marriage, but you now live in a  state that does not recognize same-sex marriage, USCIS will still review your petition.  With very few exceptions, USCIS will look the law of the place where you married, and not to the law of the place where you are currently living, to determine whether your marriage is valid for purposes of immigration law.

Please note that, as with all marriage-based petitions, USCIS will review each petition to determine not only whether the marriage is legally valid, but also to determine the good-faith nature of the marriage.  USCIS looks to the circumstances of the marriage relationship, including, but not limited to, issues such as whether the couple live together, share financial burdens and benefits, and have a history of being in communication with one another over time.

If you are considering filing a marriage-based petition, it is a good idea to consult with an immigration attorney in order to have the best chance of success and to avoid problems with the petition.

Supreme Court Ruling Will Allow Same-Sex Married Couples to File for Immigration Benefits

Today the U.S. Supreme Court decided, in a case called United States v. Windsor, that the federal Defense of Marriage Act (DOMA) is unconstitutional and is therefore invalid.

This means that same-sex couples who are legally married in one of the states or jurisdictions that recognize same-sex marriage will have their marriages recognized by the federal government.

Although we have not yet received an announcement from U.S. Citizenship and Immigration Services (USCIS) about the Supreme Court ruling, it appears likely that same-sex couples who are legally married in the United States will be able to apply for immigration benefits, such as permanent resident (green card) status, based on the marriage.

We hope to receive confirmation soon from USCIS regarding the ability of legally married same-sex couples to apply for immigration benefits.

DHS Secretary Napolitano agrees to implement immigration law changes for same-sex married couples

Janet Napolitano, Secretary of the Department of Homeland Security, applauded the Supreme Court’s decision in United States v. Windsor, holding that the Defense of Marriage Act (DOMA) is unconstitutional.  Secretary Napolitano pledged to “implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

6th Circuit Rules that TPS Recipients Are Eligible to Adjust Status

The U.S. Court of Appeals for the Sixth Circuit recently ruled that certain persons who have Temporary Protected Status (TPS), and who are eligible to apply for permanent resident status, may obtain permanent resident status while remaining in the United States, despite the fact that they entered the United States without permission.

In Flores v. USCIS, a Honduran citizen, Mr. Saady Suazo, entered the United States without inspection (EWI), and then applied for, and was granted, TPS, and has maintained TPS status ever since.  Mr. Suazo then married a U.S. Citizen.  Together they filed applications for Mr. Suazo to adjust status to Permanent Resident, without leaving the United States.  U.S. Citizenship and Immigration Services (USCIS) denied the application for permanent resident status because Mr. Suazo had entered the United States without inspection (EWI).

The Sixth Circuit, which addresses cases in Michigan, Ohio, Kentucky, and Tennessee, held that Mr. Suazo is eligible to adjust his status without leaving the United States, even though he had entered EWI.

Notably, the Court concluded by stating:  “We are disturbed by the Government’s incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition.”

It is not clear whether the Government will request a rehearing of the case before all of the judges of the Sixth Circuit or request a review by the U.S. Supreme Court.

The New Provisional Waiver

DHS has published the new provisional waiver rules. USCIS will begin to accept applications for provisional waivers on March 3, 2013.

The new waiver process allows certain people to apply for waivers in inadmissibility while remaining in the United States. If the waiver is approved, then the applicant goes abroad for an immigrant visa interview.

Provisional Waiver Expected Soon

We expect that the U.S. Government will soon publish a new procedure that will enable certain persons to apply for waivers while they remain in the United States.

Although we cannot be sure, we believe that the new procedures will be announced very soon, possibly as early as Monday.  We do not yet know when the new procedure will take effect, but we believe that the new procedure will take effect soon.

As soon as the new procedure is announced, we will have more information about eligibility requirements and procedures.