As we discussed earlier, the visa bulletin for August 2013 shows that the F2A category is current. This means that green card holders (legal permanent residents) can file the I-130 petition and the I-485 application for spouses and unmarried children under the age of 21. This is great news for a lot of families who would otherwise have to wait for the priority date to become current before the family members file the I-485 application for adjustment of status (the name of the green card application, if they are filing from within the US). However, filings for spouses and children of permanent residents have a few key differences from filing for immediate relatives of U.S. citizens. For example:

1. Make sure the person applying for permanent residence is in valid immigration status: If a permanent resident is filing for a spouse or child and the spouse or child is applying from within the United States, the spouse or child must be in valid immigration status at the time of filing. This is unlike filing for an immediate relative of a U.S. citizen. Immediate relatives of U.S. citizens can file for permanent residence in the U.S. even if they entered the U.S. with a visa but overstayed the period of authorized stay (unless there are other problems, such as a criminal record, etc).
2. Five year rule if filing for a spouse: If you (a permanent resident) acquired permanent residence based on marriage to a U.S. citizen or a permanent resident, you cannot sponsor a subsequent spouse unless a period of five years has passed from the time you obtained permanent residence. The only exceptions to this:
   1. You can prove by “clear and convincing” evidence that the previous marriage was not entered into for purposes of evading immigration laws. This may not sound so hard, but keep in mind that “clear and convincing” is a higher standard than “preponderance of the evidence” standard applied to many immigration filings. In fact, USCIS could call in your ex-spouse for an interview, and substantial documentation of the bona fides of the first marriage could be required. Ultimately, USCIS may deny your I-130 petition, finding that you did not prove by “clear and convincing evidence” that the first marriage was not to evade immigration laws.
   2. The marriage ended in the death of your previous spouse.

Example: Let’s say Sam is a green card holder since 2010. He obtained his green card through his marriage to Mary, a U.S. citizen. Sam and Mary divorced after Sam obtained permanent residence status. Sam has now met Jane. Sam and Jane are in love and want to get married and live in the United States. However, Jane is in the United States on an F-1 student visa. Therefore Sam would need to file the I-130/I-485 for Jane to remain here and obtain permanent residence status herself. Sam would need to think about the prohibition mentioned above – that is, he has not held permanent residence status for at least five years. So therefore he either cannot file right now for Jane, or he would have to prove by clear and convincing evidence that his marriage to Jane was for love and not for obtaining immigration benefits.

3. The visa bulletin miracle may not last long! Many prospective clients have contacted our office since the August visa bulletin came out, wanting to sponsor their spouses who are living overseas right now. This is a great time to start the process and we are happy to help. Keep in mind that if your spouse is not in the U.S. in valid immigration status right now, the green card application process is not going to be immediate. That is, if you are a permanent resident and your spouse is overseas, you would first file the I-130 petition with USCIS. That is currently taking about 5 months or longer to be approved. Then the National Visa Center would process the case and gather information, and then the case would be sent to the U.S. consulate in your spouse’s country. This process can take several months. At this point, we don’t know how long the dates will be current for the F2A category. It could be that by the time you get to the NVC stage, the dates for this category have retrogressed again. This does not mean you should not file now. To the contrary, depending on long-term plans, it may well make sense to go ahead and file now. This way if the dates do retrogress before your spouse’s process is complete, she/he at least has a priority date and a place “in line.” But keep in mind the process may not be as lightning-fast as the August visa bulletin makes it look.

There are many options available for spouses and family members of permanent residents. If one of these red flags prevents you from filing right now, or if you aren’t sure whether it would or not, contact us today to develop a long-term strategy for success – 804-396-3412 or esumner@sumnerimmigration.com. We look forward to hearing from you!