'Till Death Do Us Part: Marriage & The Green Card, with Carl Shusterman, Esq.

This is the full transcript of this Q&A session

Jennifer Wipf: Hi everyone! This is Jennifer Wipf, your Guide to Immigration Issues at About.com.

We have immigration attorney Carl Shusterman with us tonight for our Marriage & The Green Card Chat, "Till Death Do Us Part."

Carl is on the phone with me right now and I will be moderating and transcribing his answers. ;-)

Because there are so many of you here, I will first be selecting questions that come up frequently. Even though there are dozens of questions, I hope enough will be similar that we might get to most of them.

We remind you that, because these questions are general in nature, the answers should not be construed as legal advice.

They should be used strictly for educational purposes.

We will take questions with raised hands - like this !

Question #1: We have been waiting 19 months for our interview. Is something wrong?

Carl Shusterman: Where did you file? What part of the country? Waiting times range from 1-3 years. A good place to check the waiting times in your area is either on the receipt notice that you were given by the USCIS or on my website at http://shusterman.com.

Question #2: What is the difference between marrying a Citizen and a Permanent Resident?

Carl Shusterman: The short answer is: about 4 years. ;-)

The reason is that there are no numerical limitations on the number of Citizens who can obtain Green Cards. On the other hand, if you marry a Permanent Resident of the you are placed under the 2A Family Preference Category. Spouses and unmarried sons and daughters of Permanent Residents are allowed 114,200 Green Cards per year. Because the demand far outstrips the supply of visas it may take you over 4.5 years to receive a Green Card.

Jennifer Wipf: That is certainly a long time. Thank you Carl. OK, I see a hundred hands going up. I'll tell you what, let's just have you fire away your questions: Start typing and I will chose as many as I can. You will see a warning that you do not have "chat rights," this simply means that only I can see all the questions. (We'd all be really confused otherwise!)

Question #3: If I marry an illegal alien, can we file? Does he have to leave the ? Can he get work authorization?

Carl Shusterman: That depends on what type of illegal alien you marry. Generally, someone who overstays his visa or violates his status may adjust status in the if he marries a Citizen. However, a person who originally entered the without being inspected by an immigration officer is ineligible to adjust status or obtain a work authorization in the , with a few exceptions.

Question #4: What if a Permanent Resident marries an H-1B or L-1 Visa holder?

Jennifer Wipf: Another excellent question.

Carl Shusterman: The waiting time remains the same. The advantage is that your spouse may be able to remain in the legally if you marry him or her while their visa is still new.

Jennifer Wipf: Well, judging from how many questions I see on this issue, that's light at the end of the tunnel for many of you!

Question #5: My divorce has taken a while to come through and I am now out of status as I wait to re-marry here in the . What should I do?

Carl Shusterman: If you marry a Citizen, you can apply for Adjustment of Status. However, if you marry a Permanent Resident, the mere filing of a visa petition on your behalf does not give you permission to remain in the . However, beware of leaving the . If you remain in the unlawfully for more than 180 days, you may not be able to return to the for 3 years. If you remain in the unlawfully for more than 1 year, you may not be able to return to the for 10 years. There are waivers of the 3 and 10 year bars, if you can prove extreme hardship to your spouse. However, the CIS interprets the words "extreme hardship" very narrowly.

Jennifer Wipf: That's unfortunate. : (

Question #6: What is the difference between marrying a Citizen abroad or in the ? How long will we be apart?

Carl Shusterman: If you marry a citizen in the , you will face a long waiting time, but you will be able to stay together while you wait. If you chose to immigrate from outside the United States after your marriage abroad to a U.S. Citizen, the waiting time is much shorter, ranging anywhere from a few months to a year. But you will be separated except for when when your spouse can visit you abroad. Don't expect to be allowed to visit the while you are waiting for your Green Card.

Question #7: If the U.S. spouse's current income exceeds the requirements for the I-864, (Affidavit of Support) then how important is it, in terms of being accepted or rejected, that they have made the required income on EACH of their past 3 tax returns?

Carl Shusterman: All sponsors of family aliens must execute an Affidavit of Support or I-864. The legal requirement is that the alien is "not likely to become a public charge." Attached to the Affidavit of Support must be the petitioners last 3 Federal income tax returns. These returns should demonstrate that the petitioner's present income is at least 125% of the government's poverty income guidelines. The fact that petitioner did not meet 125% requirement at the beginning of the 3 years should not indicate that the spouse is likely to become a public charge if the petitioner's income of the later tax returns exceeds the 125% minimum income requirement. The individual offices of the USCIS tend to interpret the Affidavit of Support requirements slightly differently, however.

Jennifer Wipf: I am selecting questions that several of you seem to have. Please be patient with me. :- )

Question #8: Why is it taking so long to issue a Green Card?

Carl Shusterman: A lot of people assume that they will receive permanent residence on the day of the interview. If only this were true! Back before 1982, when I was employed as an attorney for the USCIS, the waiting time for Adjustment of Status in was 90 days. And this was thought to be quite a lengthy period of time! Other USCIS offices around the had waiting times of 30-60 days.

Today, with most waiting times running more than 2 years, additional glitches prevent almost all applicants for Adjustment of Status from obtaining permanent residence on the day of their interviews. The latest glitch has to do with computer checks performed for the CIS by the CIA. The CIA currently has a 13 month backlog in processing such cases.

Unfortunately, many CIS offices do not ask for CIA checks until shortly before the interview is scheduled. This increases the waiting time from over 2 years, to over 3 years.

Question #9: What is the CIA backlog due to though?

Carl Shusterman: My understanding is that the CIA backlog is due to lack of compatibility in computer systems. However, CIS officials have been reluctant to identify the exact problem, even referring to the glitch as a "third agency background check problem," as if it were not commonly known that the third agency is the CIA. I feel that the present situation is totally intolerable.

Jennifer Wipf: Thank you Carl. Here's another frequent question:

Question #10: If it takes more than 2 years before you get conditional permanent residency, will you automatically get unconditional permanent residency?

Carl Shusterman: Yes. If every cloud has a silver lining, this is it.

Question #11: What forms do we submit once we are married in the , and assuming we haven't broken any rules?

Carl Shusterman: The application for a Green Card through marriage within the basically consists of proving that the marriage is bonafide, and demonstrating that the spouse is qualified for a Green Card. In order to demonstrate that the marriage is bonafide, the petitioner should file a visa petition, I-130, for the foreign born spouse. Attached to the visa petition, should be a certified copy of the marriage certificate, the proof of termination of any prior marriages (examples: divorce, death or annulment certificate), and proof of the petitioning spouse's citizenship (usually a certified certificate of birth or a certificate of naturalization).

In order to prove that the foreign born spouse is eligible for a Green Card, he or she should submit a packet of forms in which the principle form is the application to Adjust Status to Permanent Resident (form I-485). In addition, you must submit a myriad of other forms, including: Biographic Information Forms, Affidavit of Support, Application for Employment Authorization and possibly an Application for Travel Document, a.k.a. Advanced Parole. All of these forms plus the photographs and filing fees must be submitted to the appropriate CIS regional office.

Question #12: How can we get the 2 year residency requirements waived for a J-1 visa holder getting married to a Citizen?

Carl Shusterman: The mere act of marriage to a Citizen does not waive the 2 year residency requirements that some J-1 visa holders are subject to. However, "exceptional hardship" to qualifying family members may help you obtain a J waiver. Usually though, there are easier ways to obtain J waivers. See http://shusterman.com.

Jennifer Wipf: Lots of people are clamoring for more details!

Carl Shusterman: It would be a good idea to take a look at that page for extensive details : ) .

However, bear in mind that even though the immigration service may approve an application as meeting the exceptional hardship requirements, the U.S. Information Agency denies most J waivers which are based on exceptional hardship to family members. Better ways to obtain J waivers include "no objection" letters for non physicians and "interested government agency" sponsorship for physicians.

Question #13: Can you invite a spouse on a fiancé visa when you have a Green Card for 4.5 years?

Carl Shusterman: In order to petition someone for a fiancé visa, you must be a Citizen rather than a Permanent Resident and the other person must be your fiancé, rather than your spouse. The fiancé for whom you are petitioning should also be outside the . See http://shusterman.com.

Question #14: Can I sponsor my fiancé's children on the K-1?

Carl Shusterman: Yes, the approval of your Fiancé Petition will enable your fiancé to qualify for a k-1 visa and her unmarried children under 18 to apply for K-2 visas.

Question #15: If a person comes as a tourist and marries a Citizen and can't prove that they did not have the intent to marry when they entered, can they be denied Adjustment of Status?

Jennifer Wipf: Very important question.

Carl Shusterman: Timing is everything in this scenario. If a person enters the and immediately marries the Citizen, it is going to be very difficult to prove that they did not misrepresent themselves if they entered as a tourist or a student. However, if the marriage took place more than 60 days after the person entered the there should be no problem. In fact, there is a precedent decision which says that if the only negative factor is that the foreign-born spouse had a pre-conceived intent to marry a Citizen at the time of entry, the USCIS should still approve the application for Adjustment of Status.

Question #16: How long does it take to get a Fiancé Petition approved?

Carl Shusterman: That varies, depending on what service center the petition is filed in. For example, the approves Fiancé Petitions in approximately two months. To see waiting times in other service centers, see: http://shusterman.com.

Question #17: How long does it take to get naturalized following the marriage interview?

Carl Shusterman: Most Permanent Residents have to wait 5 years after becoming PRs to qualify for US Citizenship. However, the law gives a break to spouses of U.S. Citizens: If you have been married for at least 3 years, and your spouse has been a Citizen for at least 3 years, you are eligible for citizenship 3 years after you become a Permanent Resident.

Actually, you are allowed to apply for naturalization 3 months before the end of your 3 year residence.

Question #18: Can I file an N-400 abroad?

Carl Shusterman: No, N-400 must be filed in the .

Question #19: When can we file for a Green Card for the spouse of a Permanent Resident?

Carl Shusterman: The State Department publishes the Visa Bulletin on a monthly basis, giving waiting times in various categories. For the last for the last 3 years my site has posted the State Department's Visa Bulletin on the Web on or before the date that the State Department posted the bulletin. See http://shusterman.com.

Jennifer Wipf: Thank you Carl! OK all, it has been a great pleasure, but it is now time for Mr. Shusterman to bid us farewell.

Carl Shusterman: It was a pleasure answering your questions! And I look forward to our next chat here on October 25th on Becoming a Citizen.

Good night all : )

Jennifer Wipf: Good night Carl!