In this blog we are answering 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office.
Qualifying for 245i and Adjustment of Status
Q: My ex-husband filed an adjustment of status application on my behalf based on 245i. We separated before we received our initial interview appointment and later divorced. I have since remarried. Can my husband apply for my permanent residence now that we are married?
A: Thank you for your question. Certain individuals who have a qualifying relative willing to file an immigrant visa petition on their behalf, are eligible to adjust their status under 245i Immigration and Nationality Act if they entered the country without inspection (unlawfully) and were the beneficiary of a visa petition or application for labor certification filed on specific dates outline below. Before proceeding with a new green card application, you should make sure you qualify for 245i and have all of the necessary documents to prove your eligibility. 245i applicants must provide documented evidence of their physical presence in the United States and evidence that the visa petition or application for labor certification was filed on their behalf by providing the receipt notice of the petition also known as the I-797 Notice of Action.
If you were:
- The beneficiary of a visa petition filed on or before January 14, 1998
- The beneficiary of a visa petition filed on or after January 15, 1998 and on or before April 30, 2001
- The beneficiary of an application for labor certification filed on or before January 14, 1998
- The beneficiary of an application for labor certification filed on or after January 15, 1998 and on or before April 30, 2001
You may qualify for 245i. Aliens with inadmissibility issues or aliens with a criminal history (especially relating to crimes of moral turpitude, false claims of U.S. citizenship, felony charges, etc) should consult with an attorney before proceeding with their application for permanent residence. If your divorce has been finalized, your present US Citizen spouse can file for your application for permanent residence, provided you meet all 245i eligibility requirements. You will need to provide 245i evidence and a copy of your final divorce decree.
For more on adjustment of status within the US and 245i please click here.
Q: I would like to visit the United States temporarily to visit universities I may apply to in the future and also other relatives of mine living in the United States. How can I apply for a tourist visa?
A: Thank you for your question. If you are a citizen of a country that does not participate in the visa waiver program, you will need to apply for a visitor visa at a US Consulate near you in order to travel to the United States. To find out which countries participate in the visa waiver program, please click here. In order to apply for a visitor visa, you will need to demonstrate that your trip will only be of a temporary nature for a specified period of time, that you have the sufficient finances to support yourself during your length of stay, that you maintain sufficient ties to your home country that will guarantee your return to your home country, that you have a home abroad that you do not intend to abandon, and that you will not engage in employment in the United States. Proof of ties home is a very very important requirement. If a tourist visa applicant fails to provide sufficient proof of ties home such as copies of a lease agreement, proof of property ownership, proof of financial responsibilities, employment, academic enrollment, military enlistment, etc. and proof that the trip will be temporary, the likelihood that the tourist visa application will be approved is very low. US consulates abroad are notorious for being extremely strict regarding these requirements. The presumption is law is that every applicant is an intending immigrant, it is for this reason that the burden of proof lies on the applicant to show that they will not engage in employment while in the United States and that they have legitimate obligations to return to their home country. For the complete requirements and to assess your situation please contact our office.
For more on temporary visas please click here.
False claims of US Citizenship
Q: I was deported from the United States based on false claim of US Citizenship because I believed my parents were permanent residents and that my siblings were citizens. I have daughters who are US Citizens. Can I adjust my status to permanent resident?
A: Thank you for your question. Unfortunately, we receive this question all too often from many of our clients. As you may be aware, false claims of US Citizenship are very serious offenses which are given life time bars. We have met with numerous clients who were given the offense unfairly and in some situations did not make any claims to US Citizenship at all. In our experience, it has been nearly impossible to challenge a false claim of US Citizenship no matter the situation. At this time, we would recommend waiting for comprehensive immigration reform to be introduced in Congress. We invite you to call our office to discuss your individual case in detail. Best of luck!
Using Income of Intending Immigrant Spouses on I-864 Affidavit of Support
Q: I will be getting married to my life partner who is in the United States presently on a student visa. I want to know if I can sponsor her for her green card. My issue is that my income does not meet 125% of the federal poverty guidelines. She makes sufficient income on her own so she will not need my financial assistance. Is this acceptable and can I still sponsor her green card?
A: Thank you for your question, congratulations on your decision. Yes, you may use your spouse’s income if the income was derived lawfully and if her income will continue from the current source after obtaining lawful permanent resident status. She must provide copies of her most recent tax return, recent pay stubs, wage statement, and employment letter to prove that she meets the income requirements.
Note: If she has dependents, this will factor into her household size. To be sure she qualifies please contact our office.
Consular Processing V. K-3 Visa
Q: I recently became a US Citizen in 2014. I married my long time girlfriend last year, and we have since had a child in Mexico. How can I immigrate my wife and child to the United States, they are both living in Mexico? How much time will it take?
A: Congratulations on the birth of your child and thank you for your question. In order to immigrate your wife and child you will need to undergo Consular processing of their immigrant visa applications because they are currently residing abroad. First, you will need to file the I-130 petition for alien relative. Once the petition is approved (approximately 4-5 months from the date of filing) it will be transferred from USCIS to the National Visa Center for pre-processing of the application. You will be required to mail several documents to the NVC including evidence of financial support, a copy of your relatives’ police report, confirmation of the DS-260 immigrant visa application, and other documents. For the complete list of documents and to read more about consular processing please click here. Once the NVC reviews and completes pre-processing of the applications, the application will be transferred to the US Consulate in Ciudad Juarez and your wife will be issued an interview appointment notice. In total the process takes approximately 8-12 months to complete. It is also possible to seek an alternative called the K-3 visa process however many couples find that it takes approximately the same time as consular processing for applicants to receive their green cards. The benefit of the K-3 visa is that your wife and child will be granted permission to live with you, while the immigrant visa petition is processing. Please call us to discuss this alternative.
Have a question we did not answer? Please contact us. We would be happy to hear your story.