Question:
Green Card for Parents - apply here or abroad??
Answer:
When my wife applied for Green Card based on being married to a Citizen
(me), she was already living in the US. We had no problem (well, none
besides INS inefficiencies and general rudeness) and she is about to
become a Citizen as well. I know of many other couples that have done
this without problems. In the time that the papers are being processed
within INS, the applicant is in a state of limbo where they aren't
supposed to leave the country (without permission). My first question
is whether this practice is actually legal or is the immigrating spouse
supposed to wait in their country until the GC has come through? In the
INS papers, it says something like: "If you are in the country...", but
makes not mention of what your status actually is during this time.
Most people just come in under B1/B2 and stay after it has expired.
Anyway, now that my wife will be a Citizen, she wants to bring her
parents as PRs. So, the next question is should her parents remain in
their home country while the papers are being processed or can they do
what my wife and others have done in coming as B1/B2s and staying here
while the papers are in INS? Another alternative would be for them to
fly back and forth, but coming in only as B1/B2s and never staying past
their permitted length of stay. It seems that INS treats spouses,
children, and parents of a US Citizen the same, labeling them "immediate
family". This implies that the 'rules' would be the same, but we aren't
sure what to do. Of course, we would rather them come now and stay here
while their papers are in process.
That's true for adjustment of status. For consular processing (when
the spouse remains outside the US), the rules are quite different. And
as a general rule, consular processing will be MUCH faster. Expect
just a few months rather than the many years it probably took your
wife.
It depends on the overall circumstances. If the spouse entered the US
with the intent to leave again, and THEN changed her mind and decided
to get married and stay, it's legal. Otherwise, it's technically
illegal and may or may not cause future problems. In your case it
apparently didn't cause problems. INS is much more lenient for spouses
of US citizens than for other people in that respect, too.
Wait in the home country.
That's OK, too, as long as they already have a B1/B2 visa in their
passport. They won't be able to get one once your wife starts her
paperwork.
Also, they shouldn't go "back and forth" but rather come once, and
then leave when the time is up, and not come back for at least a
couple months - else they would probably not even be admitted at the
airport.
To some extent, it's true, but spouses and (minor!) children get even
more preferential treatment in practice.
Let me run one more thing by you. My
wife's parents also have a 16 year old daughter. Can she apply for all
of them with a single I-130, or does she need to do an I-130 for each of
the three of them? If it's the latter, does this mean that her 16 year
old sister is subject to visa number limits? Also, she happens to be on
F-1 studying in the US right now, does that have any implications here?
Yes, immediate relatives cannot bring dependent children (you can
bring your stepchildren, though). The sister would fall under one of
two categories - they get the choice. Either, your wife can sponsor
her sister under Family 4th preference (brother/sister of a US
citizen). Or, the parents can sponsor her in Family 2nd preference
once they have their Green Card.
The problem with both is the time it takes. Family 4th preference
takes at least 11 years, and can take 22 years (and growing...) if the
sister was born in the Philippines.
Family 2nd preference can take 5 years or so (once the parents are
naturalized, this would be reduced to, in practical terms, 0).
However, the sister couldn't get married to a non-citizen, or she
would lose her F-2 petition. Of course, if she married a US citizen,
the sister could get a Green Card that way immediately.
Possibly. As long as she stays in the US, she should be fine, but she
may have problems if she leaves and tries to come back. Especially if
her F-1 has expired and she needs a new one.
