Please find below another installment in our popular regular series of frequently asked questions about immigration law. Although most of these questions have come from real clients of Spar & Bernstein, we have also included questions from other resources for your benefit. Please note that the answers here are to be used for guideline purposes only, as the questions are specific to a particular case and may not necessarily be the best advice for YOUR situation.
*****
Question: I am married to a US citizen and have two children, ages 13 and 15, in Trinidad. My mother is also a US citizen. Is it better for my husband to file for my green card and my children’s green cards? Or, is it faster to have my mother petition for me, rather than my husband?
Answer: It is faster for your husband to file for you and the children, rather than your mother. Because you are married, if your mother were to file for you, you would be considered an “F-3 married daughter of a US Citizen.” The F-3 category currently has a estimated wait for a green card of over 10 years. By that time your children may age out of the visa petition as they would be over 21 years of age at the time of visa availability. Even if they did not “age out,” under the Child Status Protection Act (which is not discussed in this answer), it would be close to 10 years before you would be reunited with them. If your husband files for you and also files separate step-child petitions for each of your children (he needs to file three separate visa petitions), then your children could get visa appointments in Trinidad in approximately 5- 9 months, and you could adjust your status here in about 12-18 months. In short, it is much faster if your husband, instead of your mother, files for you.
*****
Question: I entered the United States in 1994 on a tourist visa. The same month I got here, my friends and I were driving on the Belt Parkway in Brooklyn and got pulled over by the cops for speeding. I was in the back seat. When the cop looked into the car, he saw a handgun on the floor of the front seat. He called more of his cop friends over and we were all arrested for having that one gun. Believe me that gun was not mine. I didn’t know anything about it. Well I met with the Legal Aid attorney who told me to plead guilty and I would not have to go to jail. Being new to the country, I did not know any better, and I pled guilty. I never got in trouble with the law again. Now I am married to a US citizen, and my wife is pregnant with twins. I’m scared to have her file for me. I don’t want to take the chance of getting deported and not being able to live with my wife and my yet unborn children. My wife says I’m crazy to be scared. What do you think?
Answer: It is understandable why you would be scared to file your adjustment of status application; however, in this family dispute, I have to side with your wife. As strange as this may sound, gun possession is a deportable offense but is not an inadmissible offense. What this means is that Immigration can not prevent you from obtaining a green card because you have a simple gun possession charge, but can deport you once you are a green card holder if you get the same charge. So, since you don’t have your green card yet, you can adjust your status without a problem. Go get your green card now. Once the twins come you won’t have time.
*****
Question: I live in the United States. My husband is applying for my green card. My US citizen children receive food stamps and Medicaid benefits. My children are not from my current husband. Also, my children are in the Children’s Health Insurance Program (CHIS). I heard that if you receive any public assistance, you cannot file for your green card. Is it true?
Answer: If you were receiving need-based government benefits (which you would not eligible for as an illegal alien, unless under a grant of emergency Medicaid), or if your husband was receiving need-based government benefits, you would probably be denied your green card on public charge provisions. But as US citizens, your children are entitled to government benefits if they qualify. Your husband, who is not the children’s father, is not financially responsible for them, as far as the Immigration Service is concerned. As your husband has to give the Affidavit of Support for you, and as you personally are not getting government assistance, and because your husband is not responsible for children who get government assistance, food stamp and health care assistance for your children will not prevent you, in and of themselves, from becoming a green card holder.
