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.
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Question: In October 2000, I entered the US on a K-1 fiancee visa, but not too long after my entry, the relationship with my fiancee fell apart, and we never married. Shortly after we broke up, I met a wonderful man who was also a United States citizen. We fell in love and got married. In fact, he sponsored me in March 2001. We were scheduled for an interview and I later received a decision denying my application for a green card because I was not eligible for adjustment of status because I entered on K-1 visa and did not marry the US citizen fiancee who sponsored me. It did not matter that I filed before the deadline of the LIFE Act, April 30, 2001. Our son was born two years ago. He was recently diagnosed with Autism. Can my son sponsor me or is there any basis for me to get a green card based on his illness?
Answer: Unfortunately, there are very specific laws about entering on a K-1 fiance visa. Once a person enters on that visa, he or she must marry his or her fiance. If not, that person cannot adjust to lawful permanent residence. In your case, you may be eligible for cancellation of removal for unlawful permanent residents, should you be placed into removal proceedings. However, in order to be eligible, you must be present in the United States for a period of 10 years, show that you are a person of good moral character and that there is an extreme and unusual hardship to a US citizen or lawful permanent resident spouse or child. Based on the fact that your child is autistic, you may be able to show an extreme and unusual hardship to your child. However, you will not become eligible until after October 2010. You should seek the counsel of one of our experienced immigration attorneys.
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Question: I came to the US as part of an entertainment group. After I entered the US, my US citizen father filed a visa petition for me when I was 20 years old. He did not realize that I also needed to file an application for a green card separately. I am now 22 years old. We just realized that we had to this. Am I even eligible to file for a green card when priority date becomes current?
Answer: Great news! You are still considered an immediate relative of a US citizen. Under the Child Status Protection Act, the appropriate date to determine whether you remain an immediate relative is the date when your father filed the visa petition on your behalf. In this case, it was when you were 20 years old. As long as you have not married, you can go ahead and file your application for adjustment of status (green card) now. You do not have to wait for the priority date to become current because you do not fall into any preference category. Congratulations and good luck!
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Question: I have had a green card for 22 years. I never became a US citizen. My parents are elderly and sickly back in Jamaica. They need me to take care of them. My concern is that I can be outside of the United States for more than 6 months and maybe even a year. I don’t want to lose my green card and I know I don’t have time to become a US citizen. Do I have to choose between the United States and my parents?
Answer: You do not have to choose between your parents and living in the United States. As background, you are correct in stating that you can lose your green card if you live outside the United States for too long a period of time. The law is very straight forward: if your trip abroad is for less than 6 months, than all else being equal, you should be allowed back into the country; if your trip is between 6 months and one year the immigration officer has the right to question whether or not you are permanently living in the United States and if your trip is for more than a year, there is a presumption that you are not living in the United States and you can lose your green card. However, if you know you will be outside of the United States for a long period of time before you leave, you can apply for a re-entry permit which will allow you to stay outside of the United States for up to three years without losing your green card. You must apply for the re-entry permit before you leave the United States. You can’t do it from abroad.
