World Journal Weekly Q & A - December 14, 2008Q & A 1. My Husband Is a Permanent Resident and I Am Illegal - Should He File For Me Now or Wait Until He Becomes a U.S. Citizen?Chen reader asks: I came to U.S. in 5/2002 under B2 visa. I have overstayed for over 6 years and have a U.S. born daughter. My husband holds a green card. Can my husband apply for me now or he must wait until he becomes a U.S. citizen before applying for me? To support our family, I have to work without authorization, so I am very depressed. Please let me know when can my husband apply for me? Dear reader: Whether to apply for you now when your husband has the green card or to wait until he becomes a U.S. citizen is a gray area that depends upon your perception of risk and reward. After reading your question and looking at the entire issue again including U.S.C.I.S.'s current practice, however, I must shift more in favor of filing now if you are not and have not been under immigration removal proceedings than waiting for later although there are arguments on both sides as to whether to file. Let me briefly outline the issues that are involved. In terms of risk, there is probably not much as U.S.C.I.S. is not presently issuing Notices to Appear (NTAs) at the immigration court to our knowledge when it approves I-130 petitions. (Its July 2006 memorandum of understanding (MOU) with U.S. Immigration and Customs Enforcement on issuance of NTAs mainly covers situations pertaining to denied applications and petitions). Also you are not within the nationalities over which the Department of Homeland Security is most concerned. Weighed against this is the perception that the Department of Homeland Security has become much more active against illegal immigrants than before and that U.S.C.I.S. may change its present policy. In terms of reward, though, they are limited as your husband can only file an I-130 relative petition for you at the present time. You are not allowed to file for adjustment of status to permanent residence ( form I-485) until the priority date of the F-2A category (permanent resident applying for spouse and unmarried children under the age of 21) becomes current or he becomes a U.S. citizen. An I-130 filing will not give you employment authorization, legal stay, or ability to travel in and out of the country. An I-130 filing will also not protect you in the event that you are encountered by U.S. Immigration and Customs Enforcement agents although it may influence their views on you for the better. A positive factor for some clients is the perception that filing now may enhance or preserve their chances of obtaining future benefits if there is a change of law. Not to be discounted is also the psychological boost to the alien spouse that something positive is being done for his or her immigration. A minor negative point of filing now is the choice that will confront the permanent resident spouse in the event that he or she becomes a U.S. citizen prior to the time that the I-130 petition is approved. If you are in that situation, you will have to deal with the choice of filing the I-485 application with just an I-130 receipt, a receipt plus reconstruction of the petition, or new feed-in petition. Thus it is up to you and your husband as to whether to file an I-130 at the present time. I have generally left the choice to our clients in the past as it is a close question of whether to file or not. I will continue to do so, but if pressed, will recommend more filings as the risks in a bonafide case do not appear large and the rewards appear equivalent to or to exceed the risks of filing. We will, however, monitor the situation closely. I do note that the only time that we will absolutely recommend an I-130 filing in your circumstance is if there is question whether the spouse will be able to pass the naturalization test. In such case, we would recommend the I-130 filing even though the overstayed alien would not be able to adjust status under present law.
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Copyright © 2003-2012 Alan Lee,
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