Questions arise on a regular basis from clients and prospective clients, who are foreign nationals, as to whether they can receive their green card without returning to their home country. In reaching a proper conclusion, there are several important considerations that an Nashville TN immigration attorney must consider.
First, who is petitioning for them to receive their green card? If they are married to a U.S. citizen, their chances of remaining in the U.S. greatly increase. Second, how did the foreign national originally enter the United States? If they entered the United States with a visa – such as a B-1/B- 2 visitor visa or a F-1 student visa – then they are more likely to be eligible to receive a green card without leaving the United States. On the other hand, if they entered the United States without an inspection, walking across the border, the chances are slim that they can receive their permanent residence without leaving the United States.
The one exception is if they entered the United States by December 22, 2000 and an approvable family-based petition or labor certification was filed by an eligible family member or employer; in these situations, they are eligible for the provisions of Section 245(i). Under Section 245(i), an individual does not have to leave the United States to receive their green card, if they can prove their existence in the United States by December 22, 2000, if they have never left the United States since then, if a petition or labor certification was timely filed by April 30, 2001, and if they pay a $1,000 penalty in addition to the other filing fees. Furthermore, the foreign national’s priority number must be current. If one is filing a Section 245(i) petition, it is important to retain an immigration attorney.
If the above criteria are met, then the foreign national’s immediate relative – their spouse – can file an I-130 petition and the foreign national can file an I-485 to seek their permanent residence. Assuming all other criteria are met, the couple will have a permanent residence interview at their local USCIS office.
If the foreign national entered without inspection and is not eligible for the Section 245(i), then the spouse files an I-130 and after approval, the foreign national must go through the National Visa Center (NVC), which will schedule an interview in their country’s U.S. embassy to determine whether they will receive an immigrant visa and green card upon re-entry into the United States. Again, an immigration attorney can guide you through the complicated process.
As you can see, receiving a green card is not a simple process and the legal assistance of an immigration attorney is important.
Thanks to our friend and contributor, Bruce Buchanan of Sebelist Buchanan Law PLLC, for his insight into importance of arrival in the Green Card process.