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Green card through marriage

The spouse of a U.S. citizen is deemed an “immediate relative” under the law entitling him/her to apply for green card. There are no quota restrictions on the number of people who can obtain green cards through marriage to U.S. citizens. If the spouse entered the U.S. lawfully, he/she can file for adjustment of status without having to leave the U.S. The applicant spouse receives an employment authorization card within 90 days, and may also be eligible for an Advance Parole document to travel abroad. If the foreign-born spouse entered the U.S. without inspection, he/she may either apply for a green card abroad or if eligible for a “provisional waiver” may apply in the United States.

What is provisional waiver?

On January 3, 2013, DHS published a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process gets effective on March 4, 2013.The law is designed to avoid “extreme hardship” to U.S. citizens.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

It is of significant importance that an experienced and knowledgeable immigration lawyer is retained to protect your interest as that can make all the difference in the world. At Bhagwati and Associates, P.L.L.C., it is our top most priority to protect our clients’ best interest by providing experienced, knowledgeable, and aggressive representation, while making sure that each of our client gets the successful results and no client of ours is unjustly treated, deported or removed from the United States or is precluded from coming to the United states.

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