In 2002, the Child Status Protection Act (CSPA) was signed into law, providing much needed relief to beneficiaries of petitions who would otherwise not be able to immigrate because they had turned 21. Through application of the CSPA, many beneficiaries of family-based, employment-based, and some humanitarian petitions (including asylees and refugees) are able to preserve their status as children under the immigration law even though their biological ages may well be over the age of 21 (a "child" is an unmarried son or daughter under the age of 21).
A very important USCIS Policy Memorandum (PM-602-0091) was issued on November 15, 2013 that for inexplicable reasons, has not received much attention, although it potentially affects thousands of undocumented or "illegal" aliens throughout the United States. The Subject is "Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act 212(a)(6)(A)(i). "
1. What is asylum?
In order to become a US Citizen, a Lawful Permanent Resident will, under most circumstances, have to apply on the N-400 Form to become one through the naturalization process. The form can be deceptively simple, and sometimes, important issues may be overlooked or ignored by an applicant.
This is one of the nightmare questions that most undocumented and illegal aliens in this country carry with them daily. And with good reason. Despite all the rhetoric about comprehensive immigration reform, the statistics bear out a starker reality: namely, that removal or deportation of aliens is at record numbers. The removal process, these days, is a long one, with clogged court dockets in almost every state.
The first thing that needs to be clarified is whether your foreign born fiancé is actually here in the United States or abroad. For purposes of this article, let's assume that he/she is not residing here but living abroad in his/her native country. Under these circumstances, you can't technically file for his/her her "green card," or permanent residence until the both of you wed and establish a legal relationship as spouses. However, this does not mean that you are out of options. There is K-1 Visa or Fiancé Visa, and there can be any number of reasons why the two of you might want to pursue such a visa instead. For example, it may be that you are just not yet ready to wed abroad, or maybe you cannot make plans to travel abroad to get married. Under certain circumstances, it may be even be quicker for your loved one to get here on such a visa as opposed to a marriage-based spouse visa. Now you would only want to consider this option if you are not yet married and more importantly, will not get married while the process is pending, which can take many months. Unfortunately, if you were to sponsor your fiancé for a K-1, and then get married before the visa is granted, your fiancé would no longer be eligible for the fiancé visa since he/she is no longer your fiancé. As logical as this sounds, many people out of frustration and poor planning, have made this very mistake and have had to start an entirely new and different process to bring their loved here to America. Also, the both of you must, of course, be legally free to marry. In other words, if your loved one is technically still married to someone, he/she cannot legally marry you until he/she has first dissolved the current marriage. You would not want to initiate the fiancé immigration process until the divorce is legally finalized. Additionally, USCIS generally requires that proof that the both of you have met within the past two years. While there are limited exceptions, the best course of action would be to actually meet and retain proof that you have met the person you intend on spending the rest of your life with.
The short and simple answer is, "It depends." There are a number of preliminary questions that have to be addressed first: is the person eligible for a green card, or permanent residence? Is the Petitioner someone who is eligible to file for that person? Is there a priority date? If so, what is the priority date? Is the priority date current? Assuming that a United States citizen wants to file for his/her spouse, where is the spouse? Location of the spouse, among other things, will determine whether the intending immigrant will pursue a consular filing case (where he/she appears for a visa interview in the person's native country) or an adjustment of status case (where the person files all the necessary paperwork from within the United States).
Last week saw the introduction of a new immigration bill H.R. 3431 (entitled "American Families United Act"). A bipartisan bill co-sponsored by Rep. Beto O'Rourke (D-Texas) and Rep. Steve Pearce (R-NM), it surprisingly has not received as much attention as one would think, considering some of the significant and important changes it seeks to implement. By no means is this a comprehensive, sweeping type of reform bill, which is perhaps why it has not generated much media coverage. The bill even makes clear that it is not some sort of legalization program. However, this is progressive, reform minded legislation. If it can make its way through an intractable, deadlocked Congress, it would potentially usher in important changes to an existing system that everyone recognizes is not working. The changes in the bill specifically address hardship, and would provide much needed room for fairness to spouses, parents and children of US citizens, as it aims to do.