People who have been granted residency are issued green cards as evidence that they may now permanently reside in the U.S. For most foreign-born individuals, becoming a permanent resident is a necessary step before one can qualify to become a U.S. citizen.
Typically, those who live in another country outside of the U.S. will have their residency interview in their country of citizenship. For those immigrants already in the U.S., some qualify to apply for adjustment of status and have their green card interviews at their local USCIS office. For others in the U.S., returning to their home country is the only option.
Adjustment of status is for immigrants already present in the U.S. who are applying for residency and want USCIS to make a decision on their application. Adjustment of status is when someone who is undocumented or here on a temporary visa applies to become a conditional or permanent resident and wants to complete the entire process inside the U.S.
Those who want to seek adjustment of status must have entered the U.S. with inspection, such as on a temporary work visa or a tourist visa. This is the key requirement that presents problems for some immigrants. If the immigrant entered without inspection, such as walking across the border illegally instead of crossing at the port of entry, then adjustment of status is not an option unless the immigrant has a 245(i) petition filed years ago by a family member or employer.
For immigrants who do not qualify under 245(i) and who entered the U.S. without being inspected, the only way to receive residency through a family member’s I-130 petition is through something commonly known as “consular processing.” This is where the I-130 approval notice is sent to the National Visa Center and later to a consulate outside the U.S. The immigrant can then choose to leave the U.S. and have a consular officer in their home country make a decision on an immigrant visa application. If an immigrant visa is issued, the immigrant can return to the U.S. and a green card will later be issued by mail.
Consulting with an attorney prior to your departure from the U.S. is critically important. It is very stressful for an undocumented immigrant to leave the U.S. without knowing whether or not the immigrant visa will be approved. Understanding the level of risk one will face can be very helpful in making the decision to stay or leave.
Many immigrants who are present in the U.S. with an interview scheduled in their home county will need a waiver in order to return to the U.S. quickly. Some waivers can be filed before the immigrant leaves. Others cannot, and the immigrant will be required to wait for a lengthy amount of time outside the U.S. Anyone who is considering leaving the U.S. for an interview abroad should ensure that they have correct legal advice prior to their departure.
Everyone who is granted residency becomes a permanent resident for life except for those in one category – Conditional Residents. For those who have been sponsored by a spouse through a recent marriage, if residency is granted, a green card will be issued that is only valid for two years. In the 90 days prior to the expiration of that card, the immigrant is required to file a petition to remove the conditions so that USCIS can issue life-time residency. Failure to file this petition can result in loss of legal status completely and placement into removal proceedings where one could be ordered removed from the U.S. Anyone with a 2-year green card should consult with an experienced immigration attorney to ensure that the correct petition will be timely filed. Sparks Law has encountered many immigrants over the years who either failed to file the required petition and became undocumented or who filed the wrong USCIS paperwork and ended up in the same situation. Getting the correct information and planning ahead could save much time and stress for the couple and provide peace of mind.
Those with 10-year green cards are considered residents of the U.S. for the rest of their lives unless a judge decides otherwise or unless they abandon their residency by leaving the U.S. for a lengthy period of time. When a 10-year green card expires, this does not mean that the immigrant loses legal status. However, it is advisable to renew the card to ease international travel, satisfy future employers and ensure the ability to gain state-issued documents such as driver licenses.
Those seeking residency, through adjustment of status or consular processing, must prove that they are not disqualified because of their record or that they qualify for a waiver to forgive the criminal record. Many types of crimes make the immigrant inadmissible, and only certain types of crimes can be waived. Some immigrants have convictions that simply cannot be overcome through the immigration process. It is very important to know what the consequences are of filing a residency application before you file. For example, USCIS has the ability to deny residency and issue a Notice to Appear in removal proceedings before an immigration judge.
A qualified attorney can assess the risk an immigrant may take in filing an I-485 application for adjustment of status so that he or she can make an informed decision before applying.
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