If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

1) QUESTION:

I am a permanent resident. I got my green card through my employer four years ago. My wife is a US citizen and I have been married for three years. Can I apply for U.S. citizenship now based on my marriage to a U.S. citizen or do I have to wait until I have had my green card for 5 years?

ANSWER:

As long as you meet the other requirements, you can apply now. A permanent resident who gets their green card through employment is still eligible to apply for citizenship through naturalization based upon marriage to a U.S. citizen for three years.

How the person obtained their residence is not relevant. To qualify for the three rule, an individual must have been a permanent resident for at least 3 years, been married to a U.S. citizen for the past 3 years, and been living with their spouse for the past 3 years. In addition, their spouse must have been a U.S. citizen for the past 3 years.

The applicant must also meet all other requirements, such as the continuous residence requirement, the physical presence requirement and the good moral character requirement.

2) QUESTION:

I am a US citizen and I filed an I-130 for my husband which was approved. My husband went to Ciudad Juarez, Mexico for the visa interview. He was denied the visa and told he has to stay in Mexico for 10 years before he can reapply. Can we do anything?

ANSWER:

A foreign national who enters the US without inspection or who enters on a visa and overstays their expiration date on their visa may fall into a category called "unlawful presence." Someone who has been unlawfully present for more than 180 days and leaves the US will be subject to a three-year bar from being able to get a visa to return to the US. Someone who has been unlawfully present for more than a year and leaves the US will be subject to a ten-year bar from being able to get a visa to return to the US. There is a possibility of obtaining a waiver of the 3 or 10 year bar, without waiting the 3 or 10 years, if the applicant has a US citizen or permanent resident spouse or parent and can show that their relative will suffer extreme hardship if the waiver is not granted.

If someone who accrues a year of unlawful presence leaves the U.S., and, then, re-enters the U.S. without inspection, they will be subject to a permanent bar from being able to get a visa. Also, if someone who has been issued a removal order by an Immigration Judge or by CBP leaves the U.S., and, then, re-enters without inspection, they will be subject to the permanent bar, as well. Someone subject to the permanent bar for unlawful presence must wait outside the US for at least 10 years before they are eligible to apply for a waiver based on hardship to their relative.

This is a brief overview of these rules. If someone feels they might have been out of status for any period of time, they should consult an immigration law attorney before filing any application or leaving the US. Also, not everyone who has fallen out of status has been "unlawfully present." Sometimes people are not subject to the bar even when USCIS or the Consulate says they are. An attorney should be consulted to determine if the person is unlawfully present or subject to one of the bars.

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