Whether to sponsor a spouse now when you are a permanent resident or later when you become a US citizen does not have a black and white answer and depends on many factors that must be weighed in the particular immigrant’s situation. It’s important to ask:
(1) How long will it take for the Petitioning spouse to become a US citizen? If a Petitioner obtained their green card based on employment, asylum, U visa, or any other part of the INA besides being married to a US citizen spouse or being abused by one, the earliest the petitioner can apply for naturalization is 4 years and 9 months after the initial grant of permanent residency. If the Petitioner obtained their green card through marriage to a US citizen, the petitioner is eligible for naturalizationonly in 2 years and 9 months from the initial grant of residency if the petitioner received their green card based on the Violence Against Women Act’s self-petitioning provisions or I-751 conditional green card waiver based on extreme mental cruelty or physical battery. Otherwise, since the immigrant has to be divorced from their first spouse to have married their current spouse, there is no other way to qualify for the 3 year eligibility period.
(2) Does the immigrant spouse (beneficiary of the eventual green card) have underlying visa status now? If so, when does that run out? When does the I-94 expire? If the spouse is on an F-1, student visa, which is valid for duration of stay and has an optional practical training period for usually a year after program completion, you may be able to buy some more time and allow your spouse to remain in valid nonimmigrant while you wait for your citizenship eligibility. But if your spouse is at the end of her program, has no job prospects, and may be falling out of status, filing an Immigrant Visa may be helpful to a judge if she is placed in removal later; the judge may take this piece of evidence as her eventual means to residency once you become a US citizen.
(3) Look to the future. What is your spouse’s future non-immigrant visa application plans? The negative to filing an immigrant visa when an immigrant is on an NIV (non-immigrant visa) such as an F-1 student visa or even a B-2 visitor’s visa is that concurrently filing the IV violates the principal of dual intent, which may affect the consulate’s willingness to issue another NIV in the future for your wife. If they look up in the system and see that she has an Immigrant Visa petition filed by her husband, this shows eventual permanent intent to stay in the US, the opposite intent of someone who desires entry on an NIV(non-immigrant visa) for limited duration and which the immigrant must prove a permanent intent to return back home to their country at the end of their temporary stay in the US.
(4) Look at the actual processing times and compare. When determining if it would be faster to apply for your spouse when you are still a permanent resident, you need to consult 3 different timelines to “accurately” predict the faster route:
· Review the CIS Service Center where the petition will be filed – how long is CIS taking in the I-130 category filed by an Immediate relative (USC) vs. the I-130 category filed by a permanent resident? How quickly have these categories been moving over the past 6 months?
· Review the Visa Bulletin if you are filing as a permanent resident. What is the current priority date (the date you filed the I-130 package with the Service Center) that the 2nd preference (2A) category is on for the country where your spouse is from? How quickly has this category been moving over the past six months? Add this to the CIS Service Center timing to guestimate how long it could take before you can start the NVC process for your spouse (if your spouse is consular processing) or start the AOS (adjustment of status) process with USCIS?
· How long is USCIS taking on current adjustment cases in your local district (where the immigrant spouse is located) if s/he is eligible for adjustment? How long is NVC taking to issue packets 2 & 3 and process payments and original documents to set up the consulate interview if your spouse will be consular processing? This last category is the most unpredictable because you are projecting current processing times onto future decision dates often many years off; processing times could obviously change at the local CIS office or consulates or NVC by that time.
Remember, though, it’s not just the fastest processing time that matters. Your spouse must also be able to stay in status unless s/he qualifies for 245(i) or will be willing to face the 10 year bar if there is a substantial overstay and the two of you must be willing to undergo the waiver process which could add many more months to total processing.
These are just some of the main factors to consider when applying for an immigrant visa for your spouse if you are a permanent resident. Always consult a competent immigration attorney in depth about your spouse’s immigration history, goals, and timing needs. And make sure your spouse is in on the consultation as well. After all, you are planning your future together.
Get Your Free Guide! Immigration Attorneys & You: How to Choose Between the Right One and Those You Should Run From by Attorney Heather L. Poole
Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com
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