In my Consulta Migratoria® column this week I answer a reader's question about whether it is more advantageous to apply for permanent residency through a U.S. citizen parent or a prospective spouse.
Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
I am Mexican. I came to the United States in 2005 with a tourist visa and became undocumented. My father is a U.S. citizen and applied for me in June 2009. My daughter's mother is a permanent resident and is in the process of becoming a citizen. We are thinking of getting married if she passes the citizenship test. I would like to know if she does not pass the citizenship test, would you recommend that I marry my partner or wait for residency through my father. -Jaime H.
Jaime, the decision to get married is a very personal one and should be based on the feelings you have for each other and why you want to make a life together. Keep in mind that the government always verifies that a marriage is in good faith and not for convenience to obtain immigration benefits.
Immigration law provides that a U.S. citizen may petition for his or her children who are either unmarried or married. If the children are married, their spouse and unmarried children under the age of 21 may also benefit from the principal petition and immigrate along with the person being petitioned if they meet the necessary requirements.
A permanent resident may petition for his or her spouse and unmarried children of any age.
There is a difference in processing times for an application for permanent residence filed by a spouse who is a permanent resident or a U.S. citizen parent who wishes to petition for a child over the age of 21.
Generally, it is possible to immigrate faster through a spouse than through a U.S. parent when the immigrant is over 21 years of age.
For example, according to the U.S. Department of State's July 2014 Visa Bulletin, applications are being processed for spouses of permanent residents of Mexican origin filed before March 15, 2011.
For Mexicans who are unmarried children over the age of 21 of U.S. citizens, they are processing cases that have a priority date before February 1, 1994.
As you can see, there is a difference of 17 years for the availability of visas in the above mentioned immigration categories.
If you were to marry your partner immediately, she could petition for you as a permanent resident and your case would be assigned to the F-2A family category, spouse of permanent resident.
When your future spouse becomes a U.S. citizen, your case category would be changed to the category of immediate relatives of U.S. citizens and an immigrant visa would be immediately available to you. In addition, if you meet the proper requirements, you would be able to apply for and obtain permanent residency within the country because you entered the country legally. Otherwise, you would have to apply for your immigrant visa in Mexico unless you are covered by 245(i).
Consult with an immigration attorney or a federally accredited representative before beginning any immigration proceedings. Please do not consult with notaries, immigration consultants, paper fillers or multi-service providers because these individuals are not authorized to give you legal advice.
For more information and immigration tips, read my blog inmigracionhoy.com.
Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.
Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past President of the Hispanic National Bar Association and current President of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).