Legal Status for USC Immediate Relatives

Posted on 2月 20, 2006 by Warren Wen | Category: Immigration

Changing to Legal Status for US Citizens’ Immediate Relative

In the previous article, we explained how a U.S. citizen and a lawful permanent resident are treated differently under U.S. law, especially U.S. immigration law.  The different treatment for U.S. citizens and lawful permanent residents becomes more obvious when the immediate relatives (parents, spouse, or children) of U.S. citizens are currently in the U.S. and have illegal status.

In general, under the current immigration law, once you are in illegal status you cannot change your status to legal.  However, if you are an immediate relative of a U.S. citizen, you could change your status to legal from illegal, no mater how long you have been living in the U.S. illegally, as long as you entered into the US legally.  Moreover, as an immediate relative of a US citizen, when you file the application for lawful permanent status in the U.S. (I-485 application), you do not need to pay the fine of $1,000 even if you are currently in illegal status.  In my more than ten years of experience in legal practice, I am very sorry to see so many clients paying unnecessary fines under incorrect advice from either travel agencies or other non-qualified organizations.

For example, Ms. Zhang, who entered the U.S. legally in 2000, now has illegal status.  Last year, she got married to a U.S. citizen and planned to apply for a green card.  However, she heard from others that she cannot apply for green card although she’s currently married with to a U.S. citizen because she does not have a legal status.  She wanted to know whether this is true, and if so, what other options she has to adjust her status in the U.S.

What Ms. Zhang heard is not true.  An alien can adjust his/her status in the U.S. based on marriage with a U.S. citizen as long as he or she entered the U.S. legally according to the U.S. immigration law.  In addition, there is no quota restriction for this category.  Thus, Ms. Zhang can adjust her status in the U.S. right now.  However, if the alien got married with a green card holder, the situation would be quite different.

For Ms. Zhang, if she was married to a green card holder instead of a U.S. citizen, she could not apply for the change of status to lawful permanent resident in the U.S. because she currently has illegal status.  Moreover, even if she was in legal status, she could not apply for green card right now because the quota limitation applies to the spouse of a green card holder.  Under the current visa bulletin, she would need to wait for about five years before she could apply for a green card.

In summary, U.S. citizens and lawful permanent residents are treated quite differently under the current immigration law.  With regards to the ability to help one’s immediate alien relative to apply for a green card, U.S. citizens have much more advantages.

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.