Whether to sponsor a spouse now when you are a permanent resident or later when you become a US citizen does not have a
black and white answer and depends on many factors that must be weighed in the
particular immigrant’s situation. It’s important to ask:
(1) How
long will it take for the Petitioning spouse to become a US citizen? If a
Petitioner obtained their green card based on employment, asylum, U visa, or
any other part of the INA besides being married to a US citizen spouse or being
abused by one, the earliest the petitioner can apply for naturalization is 4
years and 9 months after the initial grant of permanent residency. If the Petitioner obtained their green card
through marriage to a US citizen, the petitioner is eligible for naturalization
only in 2 years and 9 months from the initial grant of residency if the
petitioner received their green card based on the Violence Against Women Act’s
self-petitioning provisions or I-751 conditional green card waiver based on
extreme mental cruelty or physical battery.
Otherwise, since the immigrant has to be divorced from their first
spouse to have married their current spouse, there is no other way to qualify
for the 3 year eligibility period.
(2) Does
the immigrant spouse (beneficiary of the eventual green card) have underlying
visa status now? If so, when does that run out? When does the I-94 expire? If the spouse is on an F-1, student visa,
which is valid for duration of stay and has an optional practical training
period for usually a year after program completion, you may be able to buy some
more time and allow your spouse to remain in valid nonimmigrant while you wait
for your citizenship eligibility. But if your spouse is at the end of her
program, has no job prospects, and may be falling out of status, filing an Immigrant
Visa may be helpful to a judge if she is placed in removal later; the judge may
take this piece of evidence as her eventual means to residency once you become
a US citizen.
(3) Look
to the future. What is your spouse’s future non-immigrant visa application
plans? The negative to filing an immigrant visa when an immigrant is on an NIV
(non-immigrant visa) such as an F-1 student visa or even a B-2 visitor’s visa
is that concurrently filing the IV violates the principal of dual intent, which
may affect the consulate’s willingness to issue another NIV in the future for
your wife. If they look up in the system and see that she has an Immigrant Visa
petition filed by her husband, this shows eventual permanent intent to stay in
the US, the opposite intent of someone who desires entry on an NIV(non-immigrant visa) for limited duration and which the immigrant must prove a
permanent intent to return back home to their country at the end of their
temporary stay in the US.
(4) Look
at the actual processing times and compare. When determining if it would be
faster to apply for your spouse when you are still a permanent resident, you
need to consult 3 different timelines to “accurately” predict the faster route:
· Review the CIS Service Center where the petition
will be filed – how long is CIS taking in the I-130 category filed by an
Immediate relative (USC) vs. the I-130 category filed by a permanent resident?
How quickly have these categories been moving over the past 6 months?
· Review the Visa Bulletin if you are filing as a
permanent resident. What is the current priority date (the date you filed the
I-130 package with the Service Center) that the 2nd preference (2A)
category is on for the country where your spouse is from? How quickly has this
category been moving over the past six months?
Add this to the CIS Service Center timing to guestimate how long it
could take before you can start the NVC process for your spouse (if your spouse
is consular processing) or start the AOS (adjustment of status) process with
USCIS?
· How long is USCIS taking on current adjustment
cases in your local district (where the immigrant spouse is located) if s/he is
eligible for adjustment? How long is NVC taking to issue packets 2 & 3 and
process payments and original documents to set up the consulate interview if
your spouse will be consular processing?
This last category is the most
unpredictable because you are projecting current processing times onto future
decision dates often many years off; processing times could obviously change at
the local CIS office or consulates or NVC by that time.
Remember,
though, it’s not just the fastest processing time that matters. Your spouse
must also be able to stay in status unless s/he qualifies for 245(i) or will be
willing to face the 10 year bar if there is a substantial overstay and the two
of you must be willing to undergo the waiver process which could add many more
months to total processing.
These are just some of the main factors to consider when applying for an immigrant visa for your spouse if you are a permanent resident. Always consult a competent immigration attorney in depth about your spouse's immigration history, goals, and timing needs. And make sure your spouse is in on the consultation as well. After all, you are planning your future together.
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