Published on the World Journal Weekly on November 8, 2015

Q&A 1. 2. 3. 4.

Wife of Permanent Resident Wants to Know How to Get Green Card Where Husband Fails to Get U. S. Citizenship

I came into the U. S. 5 years ago with a tourist visa, got married to my husband who had a green card, and now we have 3 children. Yet he does not get U. S. citizenship by this time. Can I apply for the green card through other means than through my husband now?

Dear reader,

The question is whether you wish another solution for permanent residence other than your husband because he failed to obtain US citizenship or whether there is deep-seated resentment against your husband so that you do not want to have anything to do with him for your green card even if it was possible. If the former, you and your husband may explore the possibilities of your immigration under the Administration's I -601A program under which you would have to consular process your case, but your husband could file the I-130 relative petition and you could both apply for a waiver of the overstay bar under an I-601A application and see its result prior to making a decision of whether to leave the country for the immigrant visa interview. That program is being expanded (most likely in spring 2016) from its present eligibility standard of immediate relatives of U. S. citizens to persons in other preference categories such as those married to green card holders. The waiver would be based on extreme hardship to your husband if the waiver was denied.

If you refuse to have anything to do with your husband, you could wait until a general legalization comes around, your children turn the age of 21 and can sponsor you, you divorce your husband and have another US citizen sponsor you in a bona fide marriage, or employ any other viable channel.

Q&A 2.

Sister Wants a 10-Year Visitorís Visa, But Has A Green Card That is Expired Ė What to Do?

Ms. Chen asks:

My sister had a green card.  Before her green card expired 2 years ago, she went back to Hong Kong and did not apply for a new card.  She now wants to give up her green card but still wants to be able to travel to the U.S. visiting.  What to do if she wants to apply for 10 years visiting visa?  Does she need to surrender her green card first and how?

Dear reader,

It is doubtful that the American consulate in Hong Kong will issue your sister a 10 year visitor’s visa without her surrendering the green card. She can apply for the visitor’s visa first, but will likely have to execute an I-407 Record of Abandonment of Lawful Permanent Resident Status before the visa is issued. The advice on the U. S. consulate’s website is as follows:

The procedure for executing the I-407 is also described by the Hong Kong U. S. consulate:
Individuals seeking to abandon their permanent resident status may file Form I-407 in person or by mail.

  • Filing in person at the Immigrant Visa Unit on Thursdays only(except U.S. and local holidays), from 2:00 p.m. to 4:00 p.m. No appointment is required. If you have a U.S. re-entry permit, even expired, please bring the document to the Consulate; or

  • Filing by mail Form I-407 together with I-551 (green card) and U.S. re-entry permit, if any, directly to the nearest USCIS International office.

Q&A 3.

Father (89) Asks What Happens to the Sonís Petition If He Passes Away During the Process

A father asks:

I am 89 years old and a U.S. citizen.  I filed for my son and his wife’s immigrant papers in 1/2015.  I will like to know if I pass away, is the application for my son still valid?

Dear reader,

Your death automatically stops the process, but the beneficiary your son, could restore the petition under one of 2 situations:

  1. If he is here in the U. S. at the time of your death and continues to reside here on the date of decision if the petition is still pending, he can continue the case. If the petition is pending, he can send a request for §204 (l) consideration, accompanied by the death certificate and evidence of qualifying U. S. residence, to the office that has the I-130 petition. If the petition has already been approved and U.S.C.I.S. has not sent a notice of revocation yet, he can send the request to the U.S.C.I.S. office that approved the I-130 petition or to the U.S.C.I.S. office with jurisdiction of a pending I-485 adjustment of status application (if one was filed).

  2. If he is not in the U. S. at the time of your death, the petition would already have to be approved by that date for your son to have a chance of having it continued under the humanitarian reinstatement process. To preserve the case, your son would most likely have to notify the National Visa Center, the agency that holds approved petitions for consular processing, of your death and ask to have the case considered for humanitarian reinstatement. The NVC would then send the case back to U.S.C.I.S. which would eventually send a list of items that it would like to have to determine whether the case should be preserved for humanitarian reasons. Documentation such as the impact of not continuing on the relatives in the U. S. with legal status, the beneficiary’s advanced age or poor health, having resided in the U. S. lawfully for some period of time, ties to the home country, etc. are relevant factors.

Please note that in either case, a substitute sponsor for financial support must be available who can submit the form I-864 affidavit of support. Qualifying relatives who can submit the I-864 are U. S. citizen or permanent resident spouse, parent, mother-in-law or father-in-law, sibling, child who is at least 18 years of age (son or daughter), son-in-law or daughter-in-law, sister-in-law or brother-in-law, grandparent, grandchild, legal guardian.


Copyright © 2003-2017 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.


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