New Update: Green Card Program for Spouses of U.S. Citizens

The Biden administration recently launched a program that would provide a pathway to citizenship for certain undocumented spouses and stepchildren of U.S. citizens. First available on August 19, 2024, this process was designed to allow eligible family members to receive a green card without needing to leave the U.S. and risk enduring a period of separation from their families.

Known as Keeping Families Together, this program gave U.S. citizens and their family members the hope of being able to achieve legal status and a long-desired sense of security. The Department of Homeland Security estimated that approximately 500,000 noncitizen spouses of U.S. citizens would be eligible to apply under this program.

This blog post will focus on the current status of the Keeping Families Together program and possibilities for what could come next. For more information on who is eligible to apply for the Keeping Families Together program, please see USCIS’ guidelines here.

Keeping families together program under court review

A week after this new program launched, the U.S. District Court for the Eastern District of Texas issued an order requiring USCIS not to approve any applications until the Court decided several issues in the case.

Yesterday, September 11, 2024, the Fifth Circuit Court of Appeals in New Orleans, Louisiana issued an unpublished order requiring that paused the proceedings in the U.S. District Court for the Eastern District of Texas while the Fifth Circuit resolved another matter regarding this case. In this latest court order, the 5th Circuit has scheduled oral argument for October 10, and USCIS approval of these applications will remain on hold indefinitely pending further action by the Court.

is uscis still accepting keeping families together applications?

USCIS is still accepting applications for the Keeping Families together program, although the government remains unable to approve any filed applications. Applications must be filed online and require a government filing fee of $580. Please note that USCIS has not guaranteed that it will refund filing fees if the Keeping Families Together program is permanently stopped.

WHAT COULD HAPPEN to THE keeping families together program?

There are a several possibilities as to what could happen next. Following oral arguments on October 10, the Fifth Circuit could make a decision on the merits of the case, either reactivating the Keeping Families Together program or stopping the program.

In either event, the case is likely to be appealed to the Supreme Court of the United States. The Supreme Court would then decide whether to hear the case or to allow the Fifth Circuit’s ruling to remain in place. The Supreme Court typically issues decisions in late June or early July.

Another possibility is that the Fifth Circuit may send the case back to the U.S. District Court for the Eastern District of Texas following their initial review. This would then likely be appealed to the Fifth Circuit Court of Appeal and ultimately to the U.S. Supreme Court, making for a lengthy process.

The final possibility is a political solution. As a general rule, Courts must give greater respect to laws issued by Congress vs executive actions such as the Keeping Families Together program. If Congress passes a law that provides these protections, this could allow family members of U.S. citizens to apply for green card status without leaving the United States.

Of course, there is a presidential election in November 2024. At the same time, voters will decide 33 open Senate seats and all 435 seats in the House of Representatives. At this stage, the potential results of these Congressional elections remain uncertain. Based on the outcome of these elections, it is possible that Congress could pass a law protecting family members of U.S. citizens once the new members of Congress are installed in early 2025.

Without discussing the specifics of a person’s case, it is not possible to give legal advice. If you are looking for help, I recommend scheduling a consultation with an experienced immigration attorney. I provide immigration law services in Portland, Oregon and to clients throughout the United States and abroad. This post is intended as only general information and is not a substitute for legal advice.

Vance Berry, Principal Attorney

Photo credit: William Cho

Can you apply for a green card as soon as you are married?

Once wedding day is over and the flower petals are swept away, many newlyweds are left with the same question: “After we get married, how long do we have to wait to file a green card application?”

how long to wait to file a green card application after marriage

Can you apply for a green card as soon as you are married? Fortunately, U.S. immigration law provides a clear answer: no waiting period is required before filing the first step in the green card process, the I-130 immigrant petition, for spouses of U.S. citizens or permanent residents. For spouses of U.S. citizens who are in the U.S. in valid status following a lawful entry, the second step in the process, the I-485 Adjustment of Status Application and related forms, can generally be filed at the same time.

what evidence is required for a marriage based green card application?

While no delay is required by law, it is important to make sure you are aware of what evidence is required for a marriage based green card application. Any marriage-based I-130 Immigrant Petition must be accompanied by a copy of the marriage certificate. Depending on the place of marriage, it can take as little as one day or as long as a month to receive the marriage certificate following wedding day. For more details on the required evidence for the I-130 immigrant petition, see the USCIS instructions here.

is it a good idea to wait to file a green card application after marriage?

The main hurdle in most marriage-based green card application is demonstrating that the marriage was entered in “good faith.” This means that the couple will need to show that their main reason for getting married was not to receive a green card.

Proof of good faith marriage can include documents showing that the couple shares a common residence, co-owns property, and/or has combined their assets, among other evidence. The marriage based green card applications I file normally include hundreds of pages of evidence of good faith marriage. I have found that providing plenty of evidence improves the couple’s chances of a smooth process.

While it is possible to file immediately after getting married, couples often wonder if it is a good idea to wait to file a green card application after marriage. Some people choose to live separately or wait to establish joint accounts until after marriage. In these cases, it can take a few weeks to gather additional evidence of good faith marriage after wedding day, including joint bank account statements and evidence of a common home. While this will delay the filing of the green card application slightly, waiting to provide evidence of a common address and joint accounts can avoid setbacks during the process, improving the odds the case will be approved.

The immigration officer reviewing the application will also expect to see photos from the couple’s wedding day. For those using a wedding photographer, it can take as long as several weeks to receive final photos. These images help tell the story of the couple’s wedding and can be valuable evidence. Therefore, it is generally worthwhile to wait to file the green card application until wedding photos are available.

Please note that, under the so-called “90 day rule”, it is wise for people who enter the U.S. in ESTA or B-1/B2 visitor status to avoid marriage or a green card application within 90 days following entry to the U.S. Taking these actions within 90 days of entry will lead the immigration service to presume that the applicant misrepresented their intentions when they came to the U.S., which can result in the denial of the green card application. Even if 90 days have passed before marriage or a green card application, the applicant can be questioned about their intentions when coming to the U.S. as a visitor. An experienced immigration attorney can help advise you on the implications of the 90 day rule.

conclusion: Can you apply for a green card as soon as you are married?

The law allows for the I-130 immigrant petition to be filed as soon as a couple is married. In addition, applicants not subject to backlogs, such as spouses of U.S. citizens present in the U.S. after a lawful entry, are also able to file the I-485 Application for Adjustment of Status as soon as they are married.

While it is tempting to file as soon as possible, it is important to be aware of what evidence is required or recommended for a marriage based green card application. The availability of this evidence will determine how long to wait to file a green card application after marriage.

Without discussing the specifics of a person’s case, it is not possible to give legal advice. In marriage-based cases, there are other issues, including current immigration status, domicile of the U.S. petitioner, and ability to financially support the intending immigrant that are important to examine before filing any application.

If you are looking for help, I recommend scheduling a consultation with an experienced immigration attorney. This post is intended as only general information and is not a substitute for legal advice.

Vance Berry, Principal Attorney

Photo credit: Olcay Ertem

Good News: USCIS Backlogs Easing

USCIS has released new data showing that processing times are improving for several common case types. A year ago, I joined other immigration attorneys in contacting members of Congress to advocate for changes to reduce U.S. Citizenship and Immigration Services (“USCIS”) backlogs. A year later, USCIS is showing signs of progress.

USCIS is tasked with processing a vast array of immigration applications and petitions, including applications for temporary visa status, green cards based on family and employment, U.S. citizenship, and more. USCIS has long taken many months, or even years, to process filings, all while charging filing fees that can total thousands of dollars.

During the Covid-19 pandemic, processing times peaked at extreme levels as staffing and funding issues severely impacted USCIS’ operations. These backlogs have been slow to resolve, leaving applicants in difficult situations as they waited for the ability to work, travel, or become green card holders or U.S. citizens.

In 2024, USCIS’ average processing times are showing signs of progress on many case types, including the following:

• Family-Based Adjustment of Status Application (U.S.-based green card application):

  • Peaked at 12.9 months in 2021, dropped to 9.4 months in 2024 (27% faster)

• Naturalization (U.S. Citizenship):

  • Peaked at 11.5 months in 2021, dropped to 5.2 months in 2024 (55% faster)

• Employment Authorization Based on Pending Adjustment of Status Application:

  • Peaked at 7.1 months in 2021, dropped to 3.6 months in 2024 (49% faster)

While these gains are promising, they are not universal. USCIS processing for travel documents that allow people to travel outside the United States while their U.S.-based green card applications are pending are still taking an average of 15 months to process, where these same applications routinely took only 2-4 months to process before the pandemic.

Similarly, Form I-130 immigrant petitions for immediate relatives, the first step in the family-based green card process, are currently taking an average of 11 months to process, whereas processing times of 5-8 months were typical before the pandemic.

While USCIS’ processing improvements are good news, more work remains to be done. I will continue to advocate for faster processing times to ensure that we have a functional system where everyone who applies for an immigration benefit has their case processed within a reasonable amount of time.

For USCIS’ full press release on current processing times, see https://www.uscis.gov/sites/default/files/document/fact-sheets/historical_pt_factsheet_fy16_to_fy24.pdf

Without discussing the specifics of a person’s case, it is not possible to give legal advice. If you are seeking help, I recommend scheduling a consultation with an experienced immigration attorney. This post is intended as only general information and is not a substitute for legal advice.

Vance Berry, Principal Attorney

Photo credit: White Field Photo

Want to Bring Family to the U.S.? Naturalization Could be the Answer.

As the holidays approach, families are making plans to form new memories together, cooking, sharing gifts, and telling stories. However, many families live separated by borders and oceans. Parents long to see children and grandchildren, and children hope to help their parents as they age.

As of January 2019, there were an estimated 9.1 million permanent residents in the U.S. who were eligible for naturalization but had not yet applied. Naturalization is the process by which a permanent resident (green card holder) becomes a U.S. citizen, and it can make it possible to bring family members together in the U.S.

Permanent residents who are married to a U.S. citizen are eligible to apply for naturalization 90 days before the three-year anniversary of receiving their green card (approximately 2 years, 9 months after receiving the green card). The couple must have been living in continuous marital union for at least 3 years at the time the naturalization application is filed. Permanent residents not married to a U.S. citizen must wait until 90 days before the five-year anniversary of receiving the green card (approximately 4 years, 9 months).

The power of naturalization is most clear when an adult U.S. citizen brings a parent to the United States. For a permanent resident, there is no way to apply for a green card for a parent; the regulations simply do not allow it. However, once that green card holder becomes a U.S. citizen, not only may they apply for their parent’s green card, but their parent will not be subject to any green card backlog. Many green card holders aim to apply for citizenship as soon as they are eligible so that they have the opportunity to bring one or both parents to the United States.

For example, a U.S. citizen recently approached me for help bringing his 97 year old mother to the United States. She was living in a nursing home in Europe, and her son had learned that she was being physically mistreated. The son took quick action, preparing to care for her at his home in the U.S. As a U.S. citizen, he was able to apply for her green card immediately. We worked with the Department of State and a member of Congress to expedite every step of the case. Four months after we filed the first step of her green card application, she received her immigrant visa, and she was able to come to the U.S. as a permanent resident. If her son had been a permanent resident, this success story would not have been possible.

While green card backlogs change, these are the current backlog times for green card applications filed by a U.S. citizen or lawful permanent resident. If the relative being applied for is a citizen of China (mainland born), India, Mexico, or the Philippines, wait times may be longer. Wait times for relatives who are citizens of any other country are listed below:

• Parent

  • Permanent resident: Not eligible to petition for green card

  • U.S. citizen: No backlog if U.S. citizen is age 21 or older

• Spouse

  • Permanent resident: Approximately 4 years, 10 months

  • U.S. citizen: No backlog

• Unmarried child under age 21

  • Permanent resident: Approximately 4 years, 10 months

  • U.S. citizen: No backlog

• Married son or daughter age 21 or over

  • Permanent resident: Not eligible to petition for green card

  • U.S. citizen: Approximately 14 years, 11 months

• Brother or sister

  • Permanent resident: Not eligible to petition for green card

  • U.S. citizen: Approximately 16 years, 8 months if U.S. citizen is age 21 or older

In immigration, there is an exception to every rule. The current backlog for U.S. citizens applying for adult unmarried sons and daughters is actually slightly longer than that for permanent residents. Backlogs are always in flux, and this is subject to change.

• Unmarried son or daughter age 21 or over

  • Permanent resident: Approximately 8 years, 4 months

  • U.S. citizen: Approximately 8 years, 11 months

U.S. citizenship provides a significant advantage to people looking to apply for permanent residence for their parents, spouses, or unmarried children under age 21. Citizenship also makes it possible to apply for a married adult son or daughter or sibling, although wait times are lengthy for these categories. For more information on current backlogs, including wait times for citizens of China (mainland born), India, Mexico, or the Philippines, see the Department of State’s Visa Bulletin at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html.

Without discussing the specifics of a person’s case, it is not possible to give legal advice. If you are seeking help, I recommend scheduling a consultation with an experienced immigration attorney. This post is intended as only general information and is not a substitute for legal advice.

Vance Berry, Principal Attorney

Photo credit: Daria Obymaha