IMMIGRATION Q&A
A citizen's friends don't qualify for a green card
Bart Jones
November 5, 2006
Can a U.S. citizen file for permanent residence status for a friend?
It may be a common perception among many people that getting a green card is a fairly easy process, said Manhattan-based immigration attorney Cheryl David. But it isn't. "There are very few ways to get a green card," she said. U.S. citizens cannot file for a friend to obtain legal permanent residence.
Generally, the most common way is for a family member who is already a U.S. citizen (or in some cases a legal permanent resident) to file a petition for his or her relative. After that is approved, the relative who is emigrating files for a green card. However, there still may be limitations. U.S. citizens can file for a spouse, parent, child or sibling. But lawful permanent residents, as they are called, can file only for a spouse or child (regardless of age). Uncles, aunts, cousins or other relations cannot petition for green cards for relatives.
The only category that permits someone to obtain a green card immediately is that of a spouse, parent or child under 21 of a U.S. citizen (if they are in the United States, they must have legally entered the country, with certain exceptions, to be eligible). In theory, these applications should go relatively quickly. (The immigration service sets a goal of six months, and lately that has generally been true.) Although a U.S. citizen can apply for a brother or sister to obtain a green card, the backlogs for those applications are extremely long. It may take 10 years to obtain a green card in these cases, David said.
Similarly, for applications filed by lawful permanent residents, the backlogs are extensive and it may take years before they can move forward on their green card. If they are illegally here, they may not be eligible at all.
Eligibility in all these scenarios applies to people who, in the case of the potential green card recipient, are either living outside the country or are in the United States legally. If they are in the United States illegally, the entire scenario changes and may complicate their chances of ever receiving a green card, David said.
Beyond immediate relatives applying for green cards, the other main way to get one is through an employment-based petition. Companies can petition for a worker to receive a green card if they can show there are no qualified legal workers in the United States to take the job. To do so, the company must file an application with the Department of Labor where they attest that its good faith recruitment did not result in any qualified U.S. worker. After the Department of Labor certifies the application, the company can then petition USCIS, as with a family-based case, and say they have a qualified worker in hand.
However, this entire process is complicated and time-consuming and may not be possible if the person is illegally here, David said. Each case is different, depending on the individual's immigration status and history in this country, and should be evaluated accordingly.
My husband was voluntarily deported out of the country. I am a U.S. citizen. We have been married for a year and a half. We have two children together. We own a home, which is only under my name. How do I apply for my husband? I hear that I have to do a consular process because he is currently out of the country. Is this true? Do I need to hire an attorney?
In this case, and in most cases, you should hire an attorney, since immigration law is notoriously complex and it is easy to go astray if you try it on your own, David said. The first thing you and your attorney need to do is to file a petition for your husband to allow him to return to the United States. Part of the petition will include showing you are an American citizen and are legally married to your husband. Depending on the consulate, you can file the petition either at the consulate or directly with the immigration service in the United States.
The complication in your case will come if your husband had been in the United States illegally. If he had more than a year of unlawful presence - which seems to be your case - he will be barred from returning here for 10 years. You can file for a waiver to the 10-year bar, on the basis that his absence would cause you, the U.S. citizen, severe hardship. However, the waiver is not easy to obtain and you should not just assume by filing the form it will be granted. You really need to present a compelling case, David said. The waiver will be submitted at the consulate after his actual visa interview. At that time, they will explain why your husband may be inadmissible.
If they do not grant the waiver, he will have to wait until the 10 years are up. If there are other negative factors present, such as a criminal history, that may prevent him from obtaining a visa at all.
Send questions to Bart Jones, Immigration Q&A, Newsday, 235 Pinelawn Rd., Melville NY 11747-4250.
