Jennifer Wipf: Mr. Shusterman is here everyone. Remember that these questions are of a general
nature, and should not be construed as legal advice.
Carl Shusterman:
Hi everyone :)
Jennifer Wipf: Hello Carl. We have several questions this evening so let's jump right in. Here's our
first.
Question 1:
Can you explain what a "preference" means? Does it always mean a
lower preference person takes longer?
Carl Shusterman: With regard
to family-based immigration, preferences are categories of persons who are eligible to
immigrate to the United States because they are being petitioned by a relative who is a US
citizen or permanent resident. See:
The First preference is for unmarried sons and daughters over 21 years of age, of US
citizens.
The 2A preference is for spouses and unmarried sons and daughters under 21 years of
age of permanent residents.
The 2B preference is for unmarried sons and daughters 21 years of age or older of
permanent residents.
The 3rd preference is for married sons and daughters of US citizens.
And the 4th preference is for brothers and sisters of US citizens where the
petitioning citizen is at least 21 years of age. What all persons in the family-based
preference categories have in common, is that only a limited number of of persons may
immigrate in any one preference and from any one country, each year.
The waits vary from a year and a half under the first preference category, for persons
born in most countries, to a virtual lifetime wait for someone born in the Philippines who
is the brother or sister of a US citizen. See:
The Bane of existence for many of our visitors. Here is another question:
Question 2: Which relatives
are considered "immediate relatives" for immigration purpose?
Carl Shusterman: Certain
relatives fall outside the family-based preference categories. These relatives are called
"immediate relatives" and are able to immigrate to the United States in
unlimited numbers. Immediate relatives include parents of a US citizen where the citizen
is at least 21 years of age, spouses of US citizens, and children of US citizens, where
the child is under 21 years of age and unmarried. In addition, certain widows of US
citizens are also considered immediate relatives.
Question 3: If my parents
got their green cards from the Visa Lottery, and I'm older than 21, can I have any way to
apply and go to the USA to live with them? They already are living in the USA.
Carl Shusterman: Your
parents may apply for you, but expect a long wait. You are in the 2B category, which is
backed up over seven years. In general, just because your relatives file a visa petition
on your behalf does not give you permission to live in the United States while you are
waiting for your "priority date" to become current.
Your priority date is your place in line for a green card.
The word "current" means that you have reached the front of the line.
Question 4: Hello, I
am a Canadian residing in California, my brother, also Canadian, recently got his green
card. Is it possible for me to pursue a green card through him? If so, how long can
I expect it to take? Thanks.
Carl Shusterman: Permanent
residents, like your brother, may only apply for their spouses and unmarried sons and
daughters. US citizens may apply for their spouses, parents, brothers and sisters, and
sons and daughters, whether or not they are married. Even if your brother naturalizes, in
the future, the waiting time for brothers and sisters , under the fourth preference
category, exceeds 11 years for someone born in Canada. See:
Question 5: What is the
process in applying through my family?
Carl Shusterman: The first
step in qualifying for a green card under the family-based preference category, is to have
your relative submit a visa petition (form I-130) to the Immigration and Naturalization
Service, together with the appropriate documentation and filing fees. To obtain a copy of
form I-130, see:
Regarding documentation, your relative needs to prove his immigration status and his
relationship to you. For example, if your US citizen brother is petitioning for you, he
needs to prove
1) that he is a US citizen and
2) that you are brothers.
Proof of US citizenship may be established by a certificate showing his birth in the
United States, by a naturalization certificate, by a citizenship certificate, or by a US
passport.
Proof that you are brothers may be established by copies of both your birth
certificates showing that you have at least one common parent.
The INS requires that these documents be certified and not merely photocopied. After the
petition is approved, you will need to wait in line for your priority date (the day INS
received the petition), to become "current."
If you are in the United States when your priority date becomes current, you may apply for
adjustment of status to permanent resident. If you are outside the United States when your
priority date becomes current, you may apply for an immigrant visa at a US consulate in
your country.
Beware of traveling to the US as a tourist or student just before your priority date
becomes current. The INS may accuse you of concealing your true intentions and may
deny your application for adjustment of status, on the basis of fraud.
Question 6: Regarding
affidavit of support from spouse, is it better to have a spouse that is just scraping by
listed, or can I add myself (been living in household for more than 6 months) which would
put us ten times over the minimum required. And is it o.k. for my spouse to be temping
instead of working full-time, and to list that on the affidavit?
Carl Shusterman: The
petitioner of a family-based visa petition must always submit an affidavit of support when
the beneficiary of the petition applies for either adjustment of status in the US, or an
immigrant visa abroad. See:
The affidavit of support is filed on form I-864. However, many times the
petitioner does not make enough money to satisfy the poverty income guidelines.
In such circumstances, the petitioner may obtain a co-sponsor, someone with enough
income to meet the poverty income guidelines.
Alternately, if there are other members of the household, including the beneficiary
of the petition, who are making enough income or have enough assets to lift the petitioner
over the poverty income amount, the household member may file form I-864a to supplement
the petitioner's affidavit of support.
Both form I-864 and I-864a may be downloaded for free at:
Question 7: If my daughter
with a green card sponsors me, can I wait in the USA while the process is going along? Can
I work? What if I enter the USA and just stay? What will happen to my application? Will I
be denied and then be illegal?
Carl Shusterman: Green card
holders are not permitted to petition for parents. They may only petition for their
spouses and unmarried sons and daughters.
Whether or not someone who is the beneficiary of an approved visa petition is permitted to
reside in the United States, depends on a number of factors. Chief among these is whether
the person has temporary permission to remain in the US by the INS.
Question 8: Is a fiancée visa
application faster than I-130?
Carl Shusterman: If the
person that you intend to marry resides abroad, it is usually faster to bring them to the
United States as a fiancée than to go abroad, marry them and immigrate them as your
spouse, See:
Question 9: I'm married to
an American. I filed - I-130 and I-485 25 months ago (Feb 98). My file is in San Jose. Is
this type of wait common, or should I assume something is wrong with my file?
Carl Shusterman: The average
waiting time for an interview for adjustment of status in San Jose varies between 730 to
975 days. So you can expect to receive an interview notice some time within the next year.
In general, waiting times for adjustment of status range from a low 75 days in
Philadelphia, to a high of 1200 days in Houston. See:
for waiting times in over 40 INS district offices around the country. I just
received the latest processing times for San Jose this afternoon and will be adding these
to the chart after this chat.
Jennifer Wipf: That's timely :) Here is our next question:
Question 10: If my wife who
is a green card holder files for my green card today, when will I be allowed to work and
when will I get my green card?
Carl Shusterman: The waiting
time for a spouse of a permanent resident to be able to apply for permanent residence is
over four years after the priority date is established. In general, it is better for your
spouse to become a naturalized citizen before applying for you to obtain a green card.
This makes you an "immediate relative" and if you entered the US legally,
will allow you to adjust status despite any period of unlawful presence or unauthorized
employment in the US.
Jennifer Wipf: I'm afraid it
is time for Carl to go now. I will be turning moderation off and you are free to stay for
open chat if you'd like.
Remember to come for our June 5th chat on citizenship!
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