Common misconceptions about obtaining a green card

Many noncitizens present in the United States hear information related to obtaining legal permanent resident status also known as a green card that is either not true or partially true.

This is partially true. The part that is true is that a U.S. Citizen spouse is in fact eligible to petition for a green card. The problem is that obtaining a green card through a spouse is not always straight forward depending on a noncitizen’s individual circumstances.

We discuss options in obtaining a green card through a spouse here. In our discussions we mentioned different circumstances that must be confirmed in order to determine whether the noncitizen will obtain a green card and the process that must be undertaken to receive the green card.

First, it must be determined if the noncitizen has committed an immigration law violation that disqualifies from the green card. This can include a violation of a criminal law, committing an immigration law violation such as being present in the United States without status or having lied to an immigration official or on an immigration application in the past. These are just a few examples of past conduct that could disqualify a noncitizen from applying for a green card.

If a noncitizen is present in the United States, it must be determined whether the noncitizen can apply for the green card from within the United States. Not all noncitizens present in the United States can apply for a green card from within the United States. If the noncitizen is present with a legal immigration status, then most likely that noncitizen can apply for a green card through a spouse within the United States through the Adjustment of Status Process. We discuss the Adjustment of Status Process here. However, the issue is not as clear for those noncitizens who are present in the United States without status. These could be noncitizens that entered the United States under a lawful status, but where the lawful status expired or noncitizens that entered the United States without being inspected by an immigration officer and permitted to enter the United States. These noncitizens never had lawful status in the United States.

The noncitizens that entered with a lawful status where they were admitted by an immigration officer, will likely be able to apply for the green card in the United States. However, the noncitizens who entered without lawgul status and permission from an officer, will likely need to depart the United States to complete the process from the foreign U.S. consulate or embassy.

The problem with those that will need to depart, is that they may be subject to a bar from applying for a green card based on the time the noncitizen was present in the U.S. without status. We discuss the immigration bars based on unlawful presence here.

Finally, assuming that the noncitizen qualifies for the green card, the process will still require the petitioner to meet certain financial requirements to qualify to petition for the noncitizen and the noncitizen still has to undergo a medical exam where the medical examiner can report about a contagious disease or lack of vaccinations which could cause denial of the green card application.

The point to take away here is that although it is certainly true that a spouse can petition for a green card, there are still potential issues each case must address to confirm whether the noncitizen spouse will eventually obtain the green card.

Similar to the misconception about obtaining a green card through a spouse, having a United States Citizen Child does not automatically qualify a noncitizen for a green card. First, only certain children, more accurately described as sons or daughter can petition for a parent. These include United States sons or daughter 21 years of age or older. Therefore, children under 21 years of age cannot petition for a parent.

Furthermore, as mentioned in the misconception based on marriage, the noncitizen needs to confirm whether there is past conduct that could disqualify from the green card and must fulfill other requirements such as the medical exam and financial requirement in order to eventually obtain a green card through a son or daughter.

As previously discussed, this will likely be possible through a green card petition based on the marriage to a U.S. Citizen spouse or relationship to a U.S. Citizen son or daughter. However, petitions from other family members such as U.S. Citizen Siblings, legal permanent resident spouses will not necessarily allow for the noncitizen to apply for the green card within the United States simply because they entered legally into the United States. Petitions from these other family members, or petitions based on employment will also require that the noncitizen maintain legal status in the United States when the petition is being filed. Otherwise, the noncitizen will not be able to apply for the green card within the United States and will need to explore applying through the consulate. Keep in mind as previously mentioned, that if the noncitizen was present in the United States without status, they may face potential bars from applying for the green card if they will need to depart and complete the process through a consulate or embassy.

Again, not entirely true. First there is no process to apply for a green card with the United States Citizenship and Immigration Service, “USCIS” simply based on being present in the United States for ten years. The only possible process that is based on residing in the United States for ten years is a process available to noncitizens present without status in the United States who are facing removal from the United States known as Cancellation of Removal.

We discuss removal proceedings for noncitizens present in the United States without status here. Only noncitizens facing removal from the United States will be eligible and permitted to submit an application before the immigration judge presiding over his case if the noncitizen can demonstrate an uninterrupted period of ten years present in the United States before being placed in removal proceedings. Furthermore, the noncitizen will need to demonstrate what is known an exceptional and extremely unusual hardship on a U.S. Citizen or legal permanent resident spouse, parent or child will suffer if removed from the United States. Finally, the noncitizen must also demonstrate that he has not committed certain criminal offenses that will disqualify him from applying for this benefit.

Finally, even if the noncitizen has qualifying family members, ten years and no disqualifying criminal history, a judge can easily deny the application simply because he does not believe the noncitizen meets the extremely high hardship threshold or because out of his discretion, the judge does not believe that the noncitizen deserves the benefit. As result, these cases are very difficult to win.