FAQS

FAMILY IMMIGRATION

Q: How does a person obtain permanent residency for his or her family members?

One of the most common ways to become a permanent resident (“green card” holder) is by having a family member who is a U.S. citizen or permanent resident. U.S. immigration laws allow U.S. citizens and lawful permanent residents to petition for certain family members to come to the U.S.

Husband/Wife – a U.S. citizen or lawful permanent resident can petition for their spouse to become a permanent resident. The husband or wife of a U.S. citizen is considered an “immediate relative” and, therefore, you do not have to wait for a visa to become available.

Fiancé Visa – a U.S. citizen can petition for a K-1 Fiancé Visa, which allows the U.S. citizen’s foreign fiancé to come to the U.S., marry the U.S. citizen and become a lawful permanent resident.

Parents – a U.S. citizen age of 21 years or more can petition for his or her parents to become lawful permanent residents. The parent of the U.S. citizen is considered an “immediate relative” so you do not have to wait for a visa to become available.

Children – U.S. citizens can petition for their children (under age 21) and their sons and daughters (age 21 and over) to become lawful permanent residents. Permanent residents can also petition for their children and sons and daughters (as long as the son or daughter is not married).

Brothers/Sisters – U.S. citizens age 21 years or more can petition for their brothers and sisters to become lawful permanent residents. However, this category has a very long waiting time, often taking as much as ten years or more for a visa to become available.

If an individual is eligible for adjustment of status, the permanent residency process can be completed through the U.S. Citizenship & Immigration Service (USCIS) in the U.S. and without the individual having to return to his or her country of nationality. If an individual is not eligible for adjustment of status, the individual must complete the permanent residency process through the U.S. Consulate Office in his or her home country.

CITIZENSHIP

Q: How does a permanent resident become a U.S. citizen?

Naturalization – Naturalization is the process through which a permanent resident becomes a U.S. citizen. In most cases, an individual must be a permanent resident for five years before being eligible to apply for naturalization. However, there are exceptions to this rule. For example, an individual who is married to a U.S. citizen can apply for naturalization after three years of permanent residency.

In order to qualify for naturalization, an applicant must show they have been a person of good moral character during the five years immediately before applying (or three years if married to a U.S. citizen). If you have been arrested, failed to file or pay taxes, or failed to pay court-ordered child support during the five-year period you will likely have difficulty establishing the required good moral character. In such cases, it is important to discuss your case with a qualified immigration attorney before applying.

Finally, an applicant for naturalization must show they have the ability to read, write and understand English and be able to pass a test on the fundamental history and government of the United States.

Q: What is a “hardship waiver” and when is it necessary?

In many cases if a person has been in the U.S. unlawfully and then leaves the U.S., he or she will not be allowed to return for a period of either three or ten years. This is often referred to as the “three or ten year bar.” Individuals unlawfully present for periods of more than 180 days but less than one year face the three-year bar. An individual who has been unlawfully present for a period of one year or more and then departs the U.S. will be barred from seeking readmission for a period of ten years. One possible way to avoid this bar is by applying for and obtaining a hardship waiver. An individual may apply for a hardship waiver if their inability to return to the U.S. would cause their U.S. citizen or permanent resident spouse or parent(s) “extreme hardship.” Extreme hardship must be more than the usual hardship a spouse or parent would face if they had to be separated from their spouse or child. This is a difficult waiver to obtain but in many cases it is the only way the person will be allowed back in the U.S. without having to wait for three or ten years.

USCIS has recently announced it is establishing new regulations which will allow certain individuals to file their hardship waiver applications from within the U.S. This will allow individuals who need a waiver to file their application in the U.S. and receive a decision before traveling to their home country. It is expected that this new regulation will significantly reduce the time families are separated while waiting on a waiver decision.