Immigration Q & A August 2013

Immigration Q & A

Immigration Q & A August 2013

Author by Edward Boreth

Q. I am married to a US citizen and I am applying for my green card. How long will it take to get my green card? Will I get a temporary work permit first and how long will that take?

A. The processing times will vary depending on your location. Since the paperwork is first sent to a central office, where it is checked for completeness and then forwarded to a local office for an interview, it is the case load of the local office that determines how long it will take to get your interview scheduled. For example, in Florida, most cases go from filing to interview in less than 6 months, sometimes as little as 3 and a half months. You may apply for a temporary work permit when you file your green card application. The work permit is not done by the local office. Generally, it takes about 3 months to receive the permit, although they sometimes arrive sooner.

There are several things that can delay your green card. The first is if you file incomplete or incorrect documents. USCIS may just reject then, or may accept the filing, but send you a request for additional evidence. Those requests may also delay the issuance of your work permit. Another thing that can slow down processing is the workload of USCIS officers. If immigration receives a large amount of filings in one area, immigration officers are often moved to that area to handle those filings. That can mean less officers in your area, which means a work slowdown. Another delay in your case can be after the interview. If you are not prepared for the interview, the officer may request a second interview, or may take some time to investigate your case. Sometimes a delay happens because immigration does not complete a background check. Thus, while most marriage based cases get completed within 6 months, there are some cases that take much longer.

If you obtain your green card through marriage to a US citizen, there will still be more immigration paperwork in your case. If you are married for less that 2 years on the day you receive your green card, you will be granted a card that expires in two years (called conditional permanent resident). In the three months period before the card expires, you will have to file a request to extend the card – called a petition to remove condition on residence. That process takes more than 6 months, often a year and in some cases almost two years! It is not a high priority for USCIS, since you continue to be a permanent resident while your application is being processed.

Q. I have been a permanent resident for two years. I need some medical treatment that I would like to get in my home country. I may not come back to the US within one year, as it may take 18 months or so. It’s too early for me to apply for US citizenship, but how do I stay out of the United States for so long without losing my permanent resident status?

A. You best bet is to apply for a Reentry Permit. It looks like a passport and allows you to stay outside the US for up to two years without losing your permanent resident status. Otherwise, you could lose it with an absence of over one year. What the reentry permit does not so, is it does not preserve your residence status for citizenship purposes. In other words, when you return from your long trip using the reentry permit, you will have to wait 4 years before you can apply for citizenship.

Q. I am a naturalized US citizen. I have met a wonderful man from my home country. We have been dating for a while and he has proposed marriage. I would happily agree, but for some problems: I was married a long time ago and my husband left me. I don’t even know where he is now. I last spoke to him about 5 years ago and he told me he was going to file for divorce. I never received any paperwork from him, or a notice to go to court. He lives in another state and I am wondering if he was able to do the divorce without me. Should I assume that he divorce me and go ahead and marry my boyfriend? I know that he has overstayed his visa and I would be happy to petition immigration for him, but would my old marriage become a problem?

A. In a legal situation, never assume anything. Always get documentary proof. Just because your husband said he was going to divorce you, doesn’t mean he actually went through with it. He might not have wanted to spend the money or might not have known how to do it properly. If you marry now, and cannot provide proof of your prior divorce to immigration, your immigration petition will be denied. If you are not divorced from your first husband, your second marriage will not be valid. The good news, is that, in most states, you can get a divorce without knowing where your husband is living. For example, Florida allows you to serve divorce papers on your husband by publishing a notice in a legal paper, as long you have made diligent attempts to find him first and have come up empty handed. Take the matter into your own hands and file the divorce (or better yet, have a divorce attorney file for you). Once you are divorced from your first husband, you can remarry and file an immigrant petition for your second husband.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.