Q & A October 19, 2003
Q & A 1 2 3
Dear Mr. Lee
I am the wife of a U.S. citizen. In April 2002, I came to the U.S.
with a K-1 visa, and got married within 90 days. My husband, however,
didn’t want to petition for me.
Questions:
1. Do I have other options to get a Green Card? What are the steps?
2. If I get divorced with my husband now, and after a period of
time, I get married again with another U.S. citizen. Is my second
husband able to petition for me?
3. During the period after I get divorced and before I get married
again, and the period when my second husband petitions for me, do
I have to go back to China and wait there until the petition is
approved?
4. Are there any issues that I need to pay attention to?
Anonymous
Dear reader:
1 Any other options which you may have for permanent residence
will also carry the burden of your K-1 status. A K-1 status cannot
be extended or changed to some other non immigrant category. Neither
can a K-1 adjust status in the States except through a marriage
based upon the K-1 status. Therefore at the end of 90 days, you
became illegal and time began to run for purposes of the three and
10 year bars on reentry for most individuals who remain illegally
in the United States for 180 days or one year respectively after
April 1, 1997. Besides dealing with the time bars, you would have
to convince an American consular officer at the time of any subsequent
interview for permanent residence overseas that your K-1 entry was
bonafide, and that there was no fraud in your attaining the K-1
visa. With these caveats, you are eligible for any of the methods
of immigration, including divorce and remarriage, labor certification,
diversity visa, etc..
2 Yes, but the interview must be overseas and you will have to
have a waiver of excludability because of your overstay in the U.S..
3 Whether you return to China when your second husband petitions
for you or when the petition is approved and your case moves into
the consular processing stage is up to you. However, the ultimate
period of time that you will be in China will in all probability
not be short as you will require a waiver to return to the United
States.
4 In all later cases in which you will apply for permanent residence,
you should be prepared to prove the bonafide nature of your K-1
entry. If your later immigration will be based upon a remarriage,
you will also have to convince the consular officer of the bonafide
nature of the second relationship.
Dear Mr. Lee
Both my wife and I applied for the labor certifications through
different companies. Mine got approved first, and recently I filed
for an I-140 and an I-485 at the same time. My wife was included
in my I-485 application.
Now my wife’s labor certification is approved, too. She wants
to file for an I-140 and an I-485 as well.
Questions:
1. Is it feasible to do so? We want to have dual assurance.
2. If yes, how does she answer for the question “Have you
applied for a Green Card before?” on her I-485 form?
Mr. Zhang
Dear reader:
1 A more feasible action on your part would be for your wife to
hold her proposed I-485 application in abeyance pending further
action on your already filed I-140/I-485 concurrent filings. Your
wife's filing for another I-485 application might run the risk of
creating another "A" file with the BCIS and further delaying
her ultimate immigration. She could file an I-140 petition based
upon the labor certification at this time, and such would not create
another "A" file with the BCIS.
2 If your wife nevertheless decides to file her own application
for I-140/I-485 benefits based upon her labor certification, she
should answer affirmatively to the question "Have you ever
before applied for permanent residence status in the U.S.?"
on the I-485 form. She should also explain the circumstances of
that filing.
Dear Mr. Lee:
My wife and I got married 3 months ago. I have a Green Card and
she is a U.S. citizen.
Question:
When can I take the citizen test?
James
Dear reader:
You are eligible for citizenship whenever you can fulfill four
requirements -- 1.) You are married for three years; 2.) Your spouse
is a U.S. citizen for three years; 3.) You and she have been living
together for three years prior to the filing of the application
for citizenship; 4.) You have held the Green Card for 3 years (Where
the first 3 conditions are met 90 days prior to 3 years, you can
file 90 days before the 3 years.) When you have met those requirements,
you can apply for citizenship, and the period of time from filing
to interview depends upon the schedule of the local office of BCIS
conducting the interview.
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