Filing for GC Under Bankrupcy

Posted on 5月 02, 2006 by Warren Wen | Category: Immigration

Can My Spouse Petition for My Green Card, If He Filed for Bankruptcy?

Mrs. Wang asked:

I arrived in the U.S. legally in 1997, and applied for the labor certification before April 30, 2001.  Unfortunately, it was denied and I have been staying in the U.S. illegally since then.  This year, I got married to a U.S citizen.  However, he has recently filed for bankruptcy.  I want to know whether I should apply for green card now or I need to wait for new amnesty. Will my husband’s financial condition influence my application for green card?  If it will, what shall I do?

Answer:

Generally speaking, it is very hard for illegal aliens to adjust their status legally in the United States.  Nevertheless, there are some circumstances that may allow them to adjust their status: one is if they qualify for political asylum; the second is to request a waiver from removal, the third is if they are grandfathered under Section 245(i), and the last is when they get married to a U.S. citizen.

According to the immigration law, the spouse of a U.S. citizen can apply for green card based on their marriage and not be restricted by quota. If the marriage between the U.S. citizen and the alien is legal, in good faith and the U.S. citizen can support his/her spouse financially in the United States, it is possible to file application to adjust the alien’s status without leaving the country. Although an alien may not have a legal status right now, he/she could apply for green card based on marriage, as long as the alien entered the United States legally. Therefore, Mrs. Wang could adjust her status right now and would not need to wait for a new amnesty.

To address Mrs. Wang’s concern, it is undoubted that the economic status of Mrs. Wang’s spouse will influence her application because the USCIS requires the spouse to be able to support the applicant financially in the U.S. Then, how can Mrs. Wang adjust her status through her marriage? She can adjust her status legally in the U.S. if she can find a co-sponsor to support her application with her husband,

The extraordinary point of this case, in which is also an advantage for Mrs. Wang, is that she still has another option to adjust her status legally, since she cloud be grandfathered under Section 245(i).  According to Section 245(i),  he or she may be considered grandfathered by Section 245(i), if an alien was the beneficiary of a qualifying immigration petition or application for the labor certification which was filed on or before April 30, 2001 and he/she was physically present in the U.S. on December 21, 2000,. Although Mrs. Wang’s application was denied at that time, because she is already grandfathered by Section 245(i) she can adjust her status without leaving the U.S., if she can find an employer who is willing to apply for labor certification for her.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.