In this week's Consulta Migratoria® column I answer a question from a reader who has a visa for professionals, who wants to know if he can obtain permanent residency by marrying a permanent resident.
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.
This is the column:
I entered the United States a year ago on an H-1B visa. My partner for the past 5 years has been a permanent resident for three years. We have decided to get married and she wants to help me obtain permanent residency.
Do I acquire any legal status when my future wife petitions me and while I am waiting for my permanent residency, or would I need to continue with my H-1B visa? If I don't get any immigration status during the waiting period while we are approved, and she is a permanent resident, would it be better to wait the two years she has left to become a citizen and petition me at that time - Aquiles A.
Achilles, a permanent resident may petition for his or her spouse and unmarried children of any age.
If you get married, your future spouse may file a family petition on your behalf. She will have to prove her status as a permanent resident of the United States, that you are married, and that the marriage is bona fide. In other words, they are not getting married just so you can get permanent residency.
Unfortunately, while your family petition is being processed you will not have any legal status or employment authorization. Therefore, it is important that you maintain your legal status through your H-1B visa.
If your future spouse's family petition is approved, she will be assigned to the F-2A family category.
According to the July 2015 Visa Bulletin, F-2A family category cases filed before November 8, 2013 are being processed.
Interestingly, they are more advanced for Mexicans in this type of petition. Currently, they are processing cases filed before September 15, 2013.
That means that there is currently a wait of approximately 2.5 years to be able to obtain an immigrant visa that would allow you to apply for permanent residency.
The fact that you are legally in the country on an H-1B visa is a great advantage. That means that if your petition is approved, you may be able to apply for permanent residency in the United States. You must maintain your legal status and not violate the terms of your visa in order to file without having to leave the country.
I do not recommend that you wait until your future wife becomes a U.S. citizen to apply. She still has two years to apply for citizenship and another 6 to 12 months to have her application processed.
If you do the sum, that process will take approximately three years, and only then would the process begin for you. But if he asks you as soon as you get married, the wait is less than three years.
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) and presenter of immigration television segments of The Lawyer at Your Side in NY1 News. He is a past President of the Hispanic National Bar Association and current President of the Westlake South Los Angeles Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.
The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.
