Your questions answered

Question: Hello, my stepdaughter who got her Green Card through me when she was 15 years old is now 21 years old and would like to file for her biological mom. Her biological mother has been here in the U.S. for many years after she entered as a tourist but has no legal status now. How long would it take and what are the steps they need to take.

Answer: As long as a child is age 21 or older, he or she can sponsor biological parents for residency, even though the U.S. Citizen child may have obtained U.S. residency through a U.S. Citizen step-parent such as yourself. Parents of U.S. Citizens are considered as “immediate relatives” and there is no waiting line. When parents are outside the U.S., the process takes between 8-12 months to process and receive an immigrant visa.

When parents are in the U.S., the process is very quick, about six months to receive the residency interview and residency card soon thereafter. In this case, your stepdaughter’s mother must have her I-94 card and have entered the U.S. legally, even though now she is out of status. From the information you have provided, that seems to be the case. It takes about two weeks to receive residency receipts once the case is filed and the mother will be considered legal from this point on while her case is processing. She can use her I-485 & I-130 receipts to obtain a Driver’s License. In 3 months or so she will get her work permit and then apply for her social security #. If an interview is required, it will be in approximately 6 months, however, in many cases with adult children filing for parents, there is no interview required. The USCIS will simply send the Green Card in the mail.

If the mother did not enter the U.S. legally, under current law, your stepdaughter son can only file the I-130 family petition for her mother now, but not the Green Card application, since his mother did not enter legally. The I-130 will not give his mother any immigration benefits or legality, no social security and no residency.

It is important to note that this applies to every category of family immigration under current immigration regulation, meaning that if someone has come to the U.S. without inspection (illegally) after April 30, 2001, there is no legal way to obtain their residency inside the U.S., this includes family members of U.S. citizens and Permanent Residents alike. The I-130 Family Petition can always be filed, in hopes that the law will change later, but for now, the filing of an I-130 does not give any immigration benefit whatsoever to anyone. In these cases, we have to wait until Congress passes a new law which will allow such immigrants to pay a penalty and file her Green Card application. As you can see, that I-94 card makes all the difference! We are all expecting some kind of Amnesty law to pass in 2009, which will help all those who are not in legal status.

Question: I am a permanent resident and my fiancée lives in Jamaica. We plan to get married in the U.S. soon, since he has a U.S. Tourist Visa. Can I file papers so he can stay in the U.S. permanently once we get married? What papers should I file?

Answer: Permanent residents can file I-130s for spouses to get green cards, but the wait is about 5 years and your husband will have no legal immigration status or right to remain in the U.S. during that time, until a visa is available. Visa availability for spouses of U.S. Permanent residents is controlled by visa preferences which are listed monthly in the Visa Bulletin put out by the Department of Homeland Security every month. Instead, you will likely want to look at either getting your U.S. citizenship or having your husband apply for a student visa or work visa to allow him to remain in the U.S. legally, while waiting for a visa to become available under the I-130 family category (2A). Once you obtain your citizenship, there is waiting spouses of US citizens and he can file his Green Card application immediately and be able to stay here legally while waiting for the processing of the residency case.