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APPLYING FOR A GREEN CARD THROUGH MARRIAGE: TYPES OF ENTRIES INTO THE UNITED STATES – PODCAST EPISODE TWO

APPLYING FOR A GREEN CARD THROUGH MARRIAGE: TYPES OF ENTRIES INTO THE UNITED STATES

PODCAST EPISODE TWO

 

Introduction

In this episode, I discuss the different types of entries into the United States and why this is important in determining if an immigrant married to a U.S. citizen can file for a green card while remaining in the United States.

Four Requirements

In the first episode I discussed the four general requirements to apply for a green card if married to a U.S. citizen:

1. The marriage must have been bona fide. In other words, a marriage is not bona fide if the only reason for the marriage is for the immigrant to have a green card.

2. The marriage must have been legal in the place where the marriage occurred. Also, if either or both spouses were previously married, the prior marriages must have been legally terminated through divorce.

3. The immigrant must have last entered the United States with a visa or a visa waiver.

4. The immigrant must not have committed certain acts in the past which may make the immigrant ineligible for a green card, such as certain criminal convictions, certain issues of fraud in filing false documents with immigration in the past, lying to immigration, etc.

Today’s Example

Today, we are going to talk about Jill, who is married to Michael, a U.S. citizen. Jill is from South Africa. She entered the United States with a B-2 tourist visa in 2004. She then decided to stay in the United States. Jill then meets Michael in 2019. They fell in love and marry in 2020.

Jill appears to be eligible for what is called adjustment status. Adjustment of status means that she can now file for a green card because she last entered United States with a visa. And she can file for that green card without having to leave United States. So even though Jill entered the United States in 2004 and has been out of status, illegal, for the past 16 years, she can still file for a green card through Michael, since he is a U.S. citizen.

Immigration Visas

There are a number of different types of visas that an immigrant may gain entry into the United States. These are the most common:

B-2 visitor visa for pleasure, or what is otherwise known as a tourist visa. B visas are only issued for a maximum of six months. After that six-month period, the visa can be extended for an additional six months if necessary, by filing an application with U.S. Citizenship and Immigration Services (USCIS).

B-1 visitor visa is for the purpose of conducting business in the United States. The B-1 visa can also be extended for a six-month period.

F-1 student visa. Issued to immigrants coming to the United States for the purpose of studying in the United States full-time at an academic program.

J-1 visa. Is issued to immigrants who are coming to the United States temporarily to participate in a cultural exchange program for work and study. For example, an immigrant who comes to the United States to live with a family with children for a specific period of time for the purpose of taking care of the children, and at the same time taking classes at a local school (otherwise known as an au pair) is eligible for a J-1 visa.

The issue with the J-1 visa is that in certain cases, there may be a two-year residency requirement attached to the visa. The residency requirement would be noted on the visa itself, which is in the passport. Therefore, the visa should state whether or not the immigrant is subject to the two-year residency requirement.

Generally, the two-year residency requirement occurs if the government from which the immigrant is coming helped the immigrant financially in coming to the United States with the J visa.

For example, the government may have given financial assistance to the immigrant such as paying for room and board and the flight to the United States.

There is a waiver that can be filed if the two-year residency requirement has been issued to the immigrant.

H-1B visa. Is a professional work visa. It is generally issued for a three-year period and can be extended for a total period of time of six years. In certain circumstances, it can be extended beyond that time if the employer has also filed for a permanent employment visa for the immigrant.

L visa. Is another type of professional work visa issued to a foreign employee who is employed by a company outside the United States. For example, a British citizen is working for Google in London. Google then wants to transfer the employee from London to California. Once issued the L visa the immigrant would be able to work for Google in the United States with the L visa.

C or D visa. Crewmember visa. C or D visas are issued to crew members on board a ship or airplane for temporary entry into the United States. For example, a person who is working onboard a cruise ship that has docked at a port in the United States to pick up passengers is eligible for a C or D visa.

The problem with a crew member visa is that a person who has entered the United States with this type of visa is not eligible for adjustment status (cannot apply for a green card while in the United States even though married to a U.S. citizen). There is another option called consular processing which will require the immigrant to leave the United States for an interview at a U.S. consulate.

VWP. Visa Waiver Program. Citizens of certain countries are permitted to enter the United States temporarily for a maximum of 90-days, without having to apply for a visa at the U.S. consulate. Unlike a B-1/B-2 visa, a visa waiver cannot be extended by filing an application with USCIS. Only under very limited circumstances can the 90- day period be extended, known as Satisfactory Departure. Satisfactory Departure Requirements. Presently there are 29 countries that participate in the visa waiver programs. Current list of VWP countries.

Entry with a False Visa.  An immigrant who enters the United States with a false visa can also apply for a green card without having to leave the United States. For example, an immigrant who buys a false visa document, enters the United States with the visa, and passes through immigration at the airport with the visa, is considered an entry.

The immigrant will have to be able to prove that she had entered with a visa. In some cases, the immigrant does not have the passport that she had entered with which contains the entry stamp. But if she does have documented proof of the entry or the stamp in her passport, the immigrant may be eligible for adjustment status. However, the immigrant will also have to file a waiver for having entered the United States with a fraudulent visa.

I-94 as Proof of Entry

Each time an immigrant enters the United States with a visa, or visa waiver, U.S. Customs and Border Protection (CBP) issues an I-94 which details the date of the immigrant’s entry, the type of visa entered with, and the date that the visa stay expires. An I-94 used to be stapled into the immigrant’s passport at the airport upon entry into the United States. Beginning on March 27, 2013, CBP began to record the I-94 electronically. An immigrant can access their I-94 as well as the history concerning their U.S. entry and departure through the CBP website at CBP I-94.

If an immigrant entered the United States before March 2013 and loses the I-94, a duplicate I-94 can be obtained through USCIS by filing an I-102 application with USCIS. USCIS I-102.

The reason that the I-94 is important, even though the immigrant’s passport has been stamped with the entry, is that when the immigrant goes to the USCIS green card interview, the officer generally wants to see the I-94 card in addition to the stamp in the passport. The reason being that there are instances in which an immigrant will have a false stamp placed in their passport. The officer, therefore, wants to make certain that there was an actual entry through immigration inspection and that the stamp was is not fraudulent.

Conclusion

An immigrant who has last entered the United States with a visa, even if the visa was false, or a visa waiver, and is married to a U.S. citizen, can file for adjustment of status (green card) without having to leave the United States. Therefore, an immigrant who has last entered the United States by crossing the border (known as Entry Without Inspection – EWI) is not eligible to file for adjustment of status.

In the next podcast and blog, we will discuss another way of entering the United States legally known as Advance Parole.

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