Who Can Legalize Whom?
U.S. citizens can file I-130 Petitions for spouses, children, parents, and siblings. U.S. citizens can also file I-129F Petitions for fiance(e)s.To petition for a parent, a U.S. citizen must be at least 21 years old. Lawful permanent residents can file I-130 Petitions for spouses and unmarried children. Special rules apply to adopted children and step-children.
How Long Is The Wait?
There are quotas on the number of immigrant visas (“green cards”) that are issued each year in certain family-based categories. Because there are insufficient green cards available for everyone who applies, there is a waiting list for certain family-based categories. The first step to be placed on the waiting list is to file an I-130 Petition for Alien Relative. Once the priority date becomes current, the applicant can take the next step toward getting his/her green card.
There are no quotas for the following relatives: spouses of U.S. citizens, parents of U.S. citizens, and children under 21 years old of U.S. citizens.
Family-Based Preference Categories
For all other relatives, there are quotas. There are four family-based preference categories:
1st preference: unmarried sons and daughters (21 and older) of U.S. citizens
2A: spouses and unmarried children (under 21) of lawful permanent residents
2B: unmarried sons and daughters (21 and older) of lawful permanent residents
3rd preference: married sons and daughters (21 and older) of U.S. citizens
4th preference: brothers and sisters of U.S. citizens
Relatives who fall within these preference-based categories must wait for their priority date to become current before they can apply for their green cards. Each month, the U.S.Department of State publishes the Visa Bulletin, which shows the priority dates that are current in each category for that month. The priority date is generally the date that the I-130 Petition was filed.
The forms for legalization are somewhat simple but there are several traps that can create problems for people who are trying to legalize.
Marriage: Because there is no category formarried children/sons/daughters of lawful permanent residents, it is imperative that children/sons/daughters of lawful permanent residents who are awaiting their priority datesnot get married. The I-130 Petition is automatically revoked upon marriage of a child/son/daughter of a lawful permanent resident.
Age-Out: If a child turns 21 before obtaining his/her green card, that child might no longer be eligible for the green card. The Child Status Protection Act (CSPA) was enacted to help prevent aging-out of certain children. However, it does not apply in all cases. Call our office to set up a consultation to determine if CSPA applies in your case.
Reinstatement: If a person has been deported/removed from the United States before, the old deportation/removal order can be “reinstated.” This means that the person can be arrested by ICE and removed without a hearing before an Immigration Judge.We have found that often people do not know whether they have been deported/removed. There is a procedure called “expedited removal” on the border that is very similar to “voluntary return.” When a person gets caught crossing the border,the immigration officials often do not explain what is happening. Our law firm has special screening procedures to ensure that our clients do not affirmatively present themselves to an immigration office when they have prior orders of deportation/removal.
Unexecuted Order of Deportation/Removal: If a person has an unexecuted order of deportation/removal, it is also very dangerous to present him/herself at an immigration office. We have found that often people do not know they have been ordered deported/removed, because their Immigration Court hearing was held in absentia.Similar to reinstatement,a person with an unexecuted order of deportation/removal can be arrested and removed without a hearing before an Immigration Judge.
Crimes: Certain arrests and criminal convictions can affect a person’s eligibility to legalize. Our law firm specializes in analyzing the immigration consequences of criminal arrests and convictions.
Unlawful Presence and the Permanent Bar: Persons who do not have permission to be in the United States may be accruing “unlawful presence.” Under INA Section 212(a)(9)(C), if a person accrues more than one year of unlawful presence, then leaves the United States, and returns illegally to the United States, that person may be subject to the permanent bar. This means that the person cannot legalize his/her status until that person has spent 10 years outside of the country. Many people are subject to the permanent bar but do not realize it.
Adjustment of Status vs. Consular Processing
Once a person’s priority date is current, that person can take the next step toward obtaining his/her green card. This will either be adjustment of status or consular processing. Adjustment of status is when a person applies for his/her green card from within the United States with U.S. Citizenship and Immigration Services.
Many people do not have the option of applying for their green cards from within the United States. As a general rule,a person cannot apply for his/her green card from within the U.S. unless the person either entered the U.S. legally or qualifies under a special law found at INA Section 245(i). If a person cannot apply within the U.S., the person may be required to consular process in his/her home country. Our law firm regularly prepares applications for adjustment of status and consular processing.
You can find more information, as well as forms and filing fees,on the website of U.S. Citizenship & Immigration Services.