Consult-O-Matic

If there’s one rule that holds true in immigration, it’s that no two cases are exactly alike.  If you enjoy a healthy dose of creative problem solving, then this is the career for you!

Despite their differences, many cases have similarities too! Thankfully, we don’t have to reinvent the wheel for every new client. So, this page contains an ever-expanding collection of general facts and fact patterns that may or may not be similar to your own. Take a look through them and see if your facts match up!

(**Obvious disclaimer: Always, always, always consult an attorney relative to your specific case.  These are intended to show some common situations and likely resolutions but are no substitute for an experienced attorney who is familiar with your specific case.)

1.  One-Step Spousal Adjustment

These cases are called “one-step” petitions because all of the necessary immigration forms can be filed (and are decided) at one time. If there are no complications, these petitions are an attorney’s bread and butter.

Scenario:  Irish male entered the U.S. in 2002 at the age of 23 on a B (tourist) visa. His visa was only good for three months, but he never left the U.S. In 2007, he meets a U.S. citizen female, falls in love (no sham marriage here), and gets married.  He’s been working without authorization the entire time he was in the U.S.  Can the Irishman get a green card?

Yes! This is your typical “one-step” spousal adjustment. The Irishman was legally admitted to the U.S. on a non-immigrant visa. Due to his marriage, he is now an immediate relative of a U.S. citizen, so he qualifies for an immigrant visa, which is immediately available to him.  Because there is an immigrant visa available and he is physically and lawfully in the U.S., he can also file to adjust status to lawful permanent resident (i.e., get his green card) at the same time.  The fact that he worked without authorization and overstayed his original B visa are irrelevant for spouses and other immediate relatives.

Of course, the usual considerations pertinent to an adjustment of status petition still apply. The U.S. citizen spouse must financially sponsor the alien, and the alien must not have committed one of the numerous offenses listed on the adjustment of status petition that would prove problematic, like draft dodging or polygamy.

 Or genocide!

For a good primer on how to tackle a one-step adjustment of status, assuming that you’re eligible, here’s a Udemy course I put together on that topic.

Udemy Course Icon

2.  Temporary Protected Status (TPS)

TPS status is a temporary, nonimmigrant status.  USCIS designates nationals from certain countries eligible for TPS on a humanitarian basis. In other words, countries with major issues, such as civil wars or massive earthquakes, are designated for TPS to help displaced foreign nationals.

justin-bieber-cover-09

We’re here to help, Canada.

Theoretically, when things settle down, the individual can return home.

Scenario:  Syrian national entered the U.S. on a B-1 / B-2 nonimmigrant visa. He planned to tour NYC for a few weeks and, with no other means to stay in the U.S., return to Syria. While Syria is in the midst of a civil war, his region had been relatively unaffected.  The individual was in the United States when Syria was designated for TPS. Can the Syrian national stay?

Yes! Assuming that the individual does not have a problematic criminal history, he meets the relatively low threshold for TPS. He was residing in and physically present in the United States since the designation date, making him, at least, prima facie eligible. He can file for TPS, seek work authorization, and be safe from deportation.

TPS is a wonderful benefit.  It’s not a permanent solution, and the designation dates can be somewhat restrictive, but its eligibility threshold is fairly low. As it is coupled with the grant of work authorization, it is an excellent stop-gap for folks from unstable countries.

For a good primer on how to file for TPS, assuming that you’re eligible, here’s a Udemy course I put together on that topic.

UdemyTPSCourseIcon

 

3.  Conditional Residence (CR)

When someone either is granted an immigrant visa or adjusts status to lawful permanent resident (LPR) on the basis of marriage to a U.S. citizen or LPR, USCIS always attempts to verify the legitimacy of the marriage.  Marriage fraud does happen, as people will try and find any way possible to reach or stay in the U.S. So, as an extra safeguard against marriage fraud, individuals receiving a green card based on marriage if the marriage is less than two (2) years old at the time the green card is granted, the individual is termed a Conditional Resident (CR).

Generally speaking, there is very little difference between being a CR and a full-out LPR. The key is that after two years, the government requires you to submit a new petition, a Form I-751, requesting that the “conditional” aspect of your residence be removed. There are all sorts of quirks to this depending on whether you’re still married, divorced, etc. The supporting documents and timing of filing change, but the form remains the same.

Scenario:  A Ugandan national in the U.S. on a valid non-immigrant visa marries a U.S. citizen. The couple immediately petitions USCIS to adjust the non-immigrant’s status. The couple receives a request for initial evidence, another request for evidence several months later, and, finally, an approval. The petition is granted two years and one day after they were married and one year and three hundred and sixty-four days after they filed to adjust status. Is the newlywed a CR or a full LPR?

All together now — he/she is a full LPR! The key dates for CR purposes is the date of the marriage and the date of the grant of the adjustment of status petition. The marriage was two years old when the petition was granted, so no I-751 for them!

Removing conditions can be straightforward or very complicated, depending on your case. For a good primer on CR status and how to remove it, here’s a Udemy course I put together precisely on that topic.

UdemyCRCourseIcon

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