Immigration Corner: Recently married and hoping to emigrate

Dear Mrs Walker-Huntington,

I recently married a permanent resident of the United States (United States). We have read that if he files for me while I am in the States, it would take a shorter period of time relative to being filed for outside of the US. Currently, I am the holder of a B1/B2 visa.

I am aware that immigration laws are a bit complex hence I seek your advice on the following concerns:

n If he begins the filing process while I'm visiting, would the filing process be completed in a shorter time frame than if I were in Jamaica?

n In general, how long does it take for the process to be completed for the spouse of a green-card holder?

n Would seeking the assistance of an immigration attorney speed up the filing process?

Thank you and I look forward to your response.

- LT

Dear LT,

You are correct, immigration law is complex. It is reportedly second in complexity only to the Internal Revenue Code. Because some persons have successfully navigated the system themselves, they believe that it is simple and sometimes tell others that they do not need legal representation. It is rare that two cases are exactly the same - even among siblings. The danger is that immigration is life-changing and acting on the wrong advice can sometimes lead to permanent inadmissibility to the US.

In your situation, you want to remain in the US and change your status from a visitor to a permanent resident. To adjust/change status in the States, a visa must be immediately available to you, i.e., your priority date must be current. This happens when a person is the immediate relative of a US citizen. It can also happen during a very small window for a permanent resident if a petition was filed and the priority date is current while the beneficiary is visiting the US and is authorised to remain in the US.

Your husband is a green-card holder. He cannot adjust the status of a family member because it is currently taking a minimum of 18 months for the priority date of the spouse or minor child of a green-card holder to become current. If you remain in the States, your period of authorised stay will expire and you will accrue unlawful presence. By the time your priority date becomes current, you will be unlawfully in the US and be ineligible to adjust status. (If your husband was a US citizen you could adjust your status even if your authorised period of stay expired).

If you remain unlawfully in the US, you would have to leave and collect your visa in Jamaica. Once you leave the US you would trigger a 10-year mandatory bar from returning and would require an extreme hardship waiver in order to return.

It is shorter for the immediate relative of a US citizen to adjust their status in the US than to do what is called 'Consular Process' and be interviewed at a US embassy. The processing time for relatives of green-card holders is the same in all circumstances. Hiring a lawyer does not shorten the processing time; however it can be less time than if a non-lawyer processes the petition, because the lawyer is experienced.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida; and an adjunct professor at Miami Dade College's School of Justice. info@walkerhuntington.com