Consult an immigration attorney about conditional resident status

An important consideration often overlooked in marriage-based immigration is the difference between permanent residency and conditional permanent residency. Provisional or Conditional residency is granted in cases where the spouses have been married for less than 2 years on the date the permanent resident status is acquired (the date your I-485 application is approved or the date you entered the U.S. with an immigrant visa, whichever is applicable). Conversely, a permanent resident status (no conditions) is granted in marriage-based immigration cases if the foreign national spouse receives his or her permanent residence after the wedding’s 2nd anniversary.

Conditional Permanent Residency

Conditional residency is a 2-year status that comes with a green card, which also expires in 2 years. Consequently, receiving conditional residency marks only halfway through the immigration process with the USCIS. Two years later, you must request the removal of conditions by filing USCIS Form I-751. However, true permanent residency is not gained until the I-751 petition is approved and the condition is removed.

Generally, both spouses must file their I-751 petition jointly; however, in some cases, there can be complications that stand in the way of joint filing. Additionally, the law allows waivers for divorce, abuse, or extreme hardship situations for foreign national spouses. This includes cases involving the death of the US citizen or permanent resident spouse. Consequently, filing Form I-751, whether joint or not, can become immensely complex. Furthermore, in some cases, what starts as a joint filing must be converted to a waiver.

Permanent Resident Status (No Conditions)

The green card that comes as a result is a 1o-year green card. If the permanent resident status is maintained, this green card can be easily renewed in 10 years, though most people would qualify and apply for their U.S. citizenship by then.

Consider each option before applying

Given the benefit of a green card with no conditions over the conditional resident card, and depending on the government’s processing times, we generally ask the spouses to consider waiting a certain period of time (14-15 months, or longer) after the wedding and before commencing their immigration process. Additionally, this tends to be an appealing option for foreign national spouses who are already in the U.S. in some sort of a lawful status, especially a status that already authorizes work and travel (for example, work visas like H-1B, L-1, P-1, O-1, etc.). However, individual preferences must always be factored in; nevertheless, in some cases, it definitely makes sense to postpone the green card filing in order to go through the process once and not twice.

While waiting to file, the spouses accumulate significantly more evidence of their marriage: jointly filed taxes for 1 or 2 years, substantial history of joint financial and other accounts, joint travel, etc. Consequently, when their green card application is ultimately submitted, the evidence in the case is so much more solid. As a result, it makes it that much easier for the USCIS or Consulate Officer to make a favorable decision.

Consult an immigration lawyer regarding your I-751

The significance of consulting an experienced immigration lawyer for I-751 cases cannot be overstated. Should you require assistance or legal advice before initiating the process independently, feel free to contact our office at 702-243-9444 or schedule your CONSULTATION now.

An immigration attorney can help with the following petitions:

• Parents of U.S. citizen children age 21 and older
• Spouses of U.S. citizens or permanent residents
• Children (unmarried and under 21) of U.S. citizens or permanent residents
• Unmarried sons and daughters age 21 and over of U.S. citizens or permanent residents
• Married sons and daughters of any age of  U.S. citizens
• Brothers and sisters (including half-siblings) of U.S. citizens
• K-1 visas for fiancés (and K-2 for their children) of U.S. citizens and K-3 visas for spouses of U.S. citizens (and K-4 for their children)

Adjustment of Status vs Immigrant Visa Processing

There are two basic procedural paths leading to permanent residency: adjustment of status and immigrant visa processing.

Adjustment of Status

Adjustment of status entails filing form I-485 with the USCIS, necessitating physical presence in the U.S. during filing. Usually, it mandates lawful entry through a visa at a port-of-entry, with rare exceptions.

Typically, maintaining lawful immigration status from entry until the adjustment application is essential. Immediate relatives—spouses, unmarried children under 21, and parents of U.S. citizens—have an exception under the Immigration and Nationality Act (INA).

Lastly, the process sometimes involves attending an interview at your local USCIS office. The USCIS offices across the country are part of a uniform federal system, knowledge of local rules and practices will help ensure a smooth experience.

Immigrant Visa Processing 

Immigrant visa processing involves additional steps and government agencies. Generally the USCIS must approve the underlying petition first (e.g., form I-130 or I-140). Then the USCIS forwards the approved visa petition to the National Visa Center (NVC) – an agency of the U.S. Department of State. The NVC will accept payment of applicable visa fees and receive and process documents such as civil documents, police clearances, and affidavits of support. Next the NVC schedules a visa interview at the designated U.S. Consulate. The applicant must closely follow the consular-specific interview instructions. This includes obtaining a medical exam with all of the required vaccines.

Which is better?

It is important to understand the difference between adjustment of status and immigrant visa processing. You may be eligible for one but not the other process. Furthermore, you may be eligible for both or neither.

Adjustment of status might not be the best option for those who are gainfully employed in their home country and do not wish to be “stuck” in the U.S. “Stuck” meaning waiting for months on end to receive their employment authorization (EAD) from the USCIS before they could work again. Similarly, the same goes for the advance parole (permission to travel outside the U.S.) which can also take a very long time to receive. Immigrant visa processing, however, is a really bad idea for those who overstayed their period of admission (as shown on I-94) by more than 6 and especially 12 months, as these violations trigger, respectively, 3 and 10 year inadmissibility bars. Consequently, from a myriad of things to consider, these are but a few.

Immigration law and procedure can be complex and full of nuances. Unfortunately, we often see individuals and families who come to consult us a little too late – after their adjustment of status application or immigrant visa was denied or immigrant visa was refused. It is essential not to let this happen.

Consult an immigration lawyer

U.S. permanent residency is an extremely valuable benefit. You may not need to hire an Las Vegas immigration lawyer, but do yourself a favor and at least consult one before you send anything to the government.

During our 1-hour consultation, we thoroughly analyze all possible scenarios. Our approach involves listening attentively to grasp your personal needs and preferences, alongside considering numerous other factors. Additionally, we meticulously examine our clients’ immigration history, including any violations that might affect their eligibility, before proposing to pursue an immigrant visa, adjustment of status, or any other course of action.

Consult with an experienced immigration attorney to understand the best process. Government agencies adjudicate applications, enforce rules, and provide basic information. They are not qualified to give legal advice.

Applying for Naturalization

Deciding to become a U.S. citizen is one of the most important decisions an immigrant can make. Depending on your situation, there may be different ways to obtain citizenship. 

• Naturalization is the process by which U.S. citizenship is granted to a lawful permanent resident after meeting the requirements established by Congress in the Immigration and Nationality Act (INA)

• Acquisition of citizenship is obtained through U.S. citizenship parents either at birth or after birth, but before the age of 18.

Do you need an immigration lawyer for naturalization?

You may well be able to apply for naturalization on your own. Depending on the case, the process simple enough. The USCIS form N-400 used to make the application can be filed by mail as well as online. USCIS also has a helpful online tool called Naturalization Eligibility Tool.

Consider talking to an immigration attorney before filing anything to ensure your eligibility and resolve any doubt you may have about the process. Definitely consider talking to an immigration attorney if think you need to answer Yes to any of the background questions on Form N-400. Have you EVER been arrested or cited, owe an overdue tax, failed to pay child support? Do you have some complication in your immigration history? Traveled outside the U.S. for more than 6 months in the past 5 years? What about Selective Service, if you are a male under the age of 31?

How we can help with naturalization.

If you need guidance, we can help. We can do this with a one-time consultation. During the consultation we explain the entire naturalization process from A to Z and what you should expect. Furthermore, we are happy to provide study materials and helpful study skills. More importantly, we can clarify your eligibility and explain what documents you will need to file with your application to become a U.S. citizen.

Alternatively, we may be able to take on your naturalization matter completely. In this case the service we provide includes completing and filing the application for you;  monitoring the process and advising you of any progress in the application; having an open-door policy to you as a current client – being available to answer any questions by call, text or email along the way; and preparing you for the naturalization interview/test. We will also do any necessary follow up with the USCIS after your interview, such as responding to the government’s requests for evidence (this does not happen often if the application is properly completed and documented). 

Obviously if there is an issue with your background or qualification, we will give you our honest opinion and perhaps advise to postpone your application or not file at all.

Extraordinary ability / EB-1 self-petitions

A self-petition for classification as an individual with extraordinary ability (EB-1) leads to U.S. permanent residency. This is one of the few ways a person can self-petition, whereas most family and employment based immigrant petitions require a sponsor/petitioner.

EB-1 petitions is a concentration in my law practice, particularly petitions by artists and athletes of extraordinary ability: performers, singers, dancers, acrobatic artists, gymnasts, martial artists, etc. These cases are very near and dear to my heart and over the past many years I have truly enjoyed working with amazingly talented people at the pinnacle of their field. I have helped several hundred of such individuals and their family members obtain their status as permanent residents of the United States.

How do you qualify for the extraordinary ability classification?

To highlight the steps: First, demonstrate extraordinary ability in specific fields with sustained national or international acclaim. Additionally, meet at least three of the ten criteria listed or exhibit evidence of a one-time significant achievement, like a Pulitzer, Oscar, or Olympic Medal. Furthermore, provide evidence of continued work in your field. Notably, no employment offer or labor certification is necessary, enabling self-petition.

Ten criteria from 8 CFR 204.5(h):

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence

• Your membership in associations in the field which demand outstanding achievement of their members

• Published material about you in professional or major trade publications or other major media

• Evidence that you have been asked to judge the work of others, either individually or on a panel

• Your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field

• Your authorship of scholarly articles in professional or major trade publications or other major media

• Evidence that your work has been displayed at artistic exhibitions or showcases

• Your performance of a leading or critical role in distinguished organizations

• Evidence that you command a high salary or other significantly high remuneration in relation to others in the field

• Your commercial successes in the performing arts