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Requirements for "Following-To-Join",
Conditional Green Card and Related Other Issues

1. The Requirements for "Following-To-Join" -- Married to Your Spouse before You Became a Permanent Resident

U.S. permanent resident who married before the date of obtaining the U.S. permanent residency can possibly confer “following-to-join” benefits to his or her family members (husband, wife, and child). Essentially, through this process, spouses and children will be able to receive U.S. Green Cards quickly. The following-to-join is for alien spouse and children to receive derivative benefits based on a primary permanent residency’s immigration application approval.

Certain requirements must be met in order for a spouse or child to qualify under “following-to-join”. First, the legal permanent resident must have adjusted status or obtained Green Card through a preference category (family or employment based) or diversity lottery. Some examples include but are not limited to NIW, EB-1, EB-2, etc. In addition, an immigrant visa number must also be current in order for a family member to receive “following-to-join”. 

Second, the Green Card holder married before becoming a permanent resident, and the relationship between the permanent resident and spouse/child is intact at the time of filing. Children of the permanent resident must be unmarried and under the age of 21. Furthermore, the child/step-child must be from an existing marriage before the permanent resident obtained permanent residency. 

If you were married to your spouse before you became a permanent resident, your spouse may be eligible to receive following-to-join benefits. This means that you would not have to submit a separate Form I-130 for your spouse, and your spouse would not have to wait any extra time for an immigrant visa to become available. You should file the Form I-824 at the USCIS office that took the most recent action on your case. If the Form I-824 is approved, the USCIS will notify a U.S. consulate that you are a lawful permanent resident, so that your spouse/children can apply for immigrant visas. You must then ask your spouse to report to the local U.S. consulate to complete the processing.

2. The Following-To-Join Application for Green Card Holder's Spouse

Follow to join benefits allow the spouses and children of U.S. permanent residents to get green cards at a later time. This benefit is available to the eligible dependents of those who got their green cards based on family sponsorship or employment sponsorship program. Dependents of immigrants who received green cards in the United States based on an immediate relative petition are not eligible for follow to join benefits.

Permanent residents need to file Form I-824, Application for Action on an Approved Application or Petition, for their spouses or children who are eligible for follow to join benefits. USCIS will grant the eligible spouses or children permanent resident status in the same preference category as their permanent resident spouses or parents. They need not wait for visa numbers to become available as visas will be issued to them immediately.

At the time of filing Form I-824, applicants must prove that a family relationship existed between them and the beneficiaries even before they became U.S. permanent residents. Also, spouses and the children of the applicants must have been living abroad when the applicants entered U.S. with their green cards or adjusted their status to permanent residence from within the country.

Since the spousal relationship have existed before your admission to the United States, your wife may qualify for the following-to-join benefit for a permanent resident's spouse. You should file Form I-824 at the USCIS office that took the I-485 approval on your case. The documents you must file with the USCIS include a copy of the I-797, Notice of Action, for your original I-485 application.

If your I-824 application is approved, USCIS will notify a U.S. consulate in your wife's country that you are a U.S. lawful permanent resident, so that your wife can apply for a following-to-join immigrant visa. Your wife must then contact the local U.S. consulate to complete the visa processing.

3. Conditional Residence Green Card and How to Remove the Conditions

If you are a U.S. citizen or Green Card holder, if you have been married less than two years when your alien spouse is granted U.S. permanent resident status, the alien spouse will receive U.S. permanent resident status on a conditional basis.

To remove the conditions on you spouse's residence status in United States, you and your spouse should apply together using USCIS Form I-751, Petition to Remove the Conditions of Residence. You must apply to remove conditional status within the 90-day period before the expiration date on the conditional resident card. If you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal from the United States.

If your alien spuse has a child in previous marriage and if you are petitioning for a step-child and have not been married to the child’s genetic parent genetic or legal gestational mother for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident status also.

Therefore Form I-751 can also be used to remove the conditional basis of permanent residence for the child. If your spouse and child became conditional permanent resident at the same time or within 6 months, the child can be included in your spouse’s petition. If the child became a permanent resident more than 6 months after your spouse, the child will need to file a separate Form I-751.

4. How to Work in United States Legally

U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for a work permit, formally called an "Employment Authorization Document" (EAD), to prove you can work in the United States. 

  • If your spouse is outside the United States, the spouse does not need to apply for a work permit once he or she has been admitted as an immigrant. The alien spouse will receive a passport stamp upon arrival in the United States. This stamp will prove that he or she is allowed to work until a Green Card (Permanent Resident Card) is created.

  • If your spouse is in the U.S. and has applied to adjust to permanent resident status (by filing USCIS Form I-485, Application to Register Permanent Residence or Adjust Status), he or she is eligible to apply for a Work Permit (EAD) while the case is pending. Your spouse should use USCIS Form I-765 to apply for a work permit.

5. Upgrade the Family Second Preference (F2A) Petition after You Become U.S. Citizen

If you were a U.S. permanent resident when you filed the Form I-130 for your spouse and children, you can upgrade your application after you become U.S. citizen. If you are now a U.S. citizen, you must file separate immigrant visa petitions for each of your children. If you upgrade a family second preference (F2A) petition for your spouse and you did not file separate petitions for your children when you were a permanent resident, you must do so now. 

A U.S. citizen's child does not receive derivative status in an immediate relative petition. This is different from the family second preference (F2A) petition where a child is included in his/her parent's F2A petition. 

Children born abroad after you became a U.S. citizen may qualify for U.S. citizenship. They should apply for U.S. passports. The U.S. Consular officer will determine whether your child is a U.S. citizen and can have a passport. If the U.S. Consular officer determines your child is not U.S. citizen, the child must apply for an immigrant visa if he/she wants to live in the U.S.

6. A Suspect Marriage and Investigation of USCIS

The USCIS has the discretion to suspect and then accordingly to investigate a marriage that may bring immigration benefits to the aliens. If the USCIS has reasons to suspect that the marriage is a "sham marriage", the USCIS officers have the authority to investigate. Usually, the USCIS officers may visit the suspect couple at their residence, or visit their neighbors to investigate whether they reside together, share a household, or own property jointly, etc. 

Also, the USCIS officers may arrange interviews with the couple at their residence or at USCIS offices. In the interview, the USCIS officers may ask private questions regarding all aspects of their marital relationship, such as the brand of the other spouse's underwear or the favorite food, except those which are too offensively intrusive.

7. The Need to Update the USCIS Records Regarding Address Changes 

For family-based immigration, the Family 2A category is for spouses and minor children of U.S. permanent residents. The immigration visa number's waiting time could be long for this category - sometimes waiting for several years. Thus it is difficult for USCIS or DOS to communicate with petitioning relatives who have since relocated. Also, for some cases, USCIS may issue Request For Evidence (RFE) notice for cases that have not been approved.

When so much time has elapsed since the Form I-130 petition was initially filed, USCIS' mails may go to addresses that are long-since out of date. Many Form I-130 petitioners frequently are unaware of the need to update USCIS records when they change addresses. This is often the case for some petitioner who have forgot to file Form AR-11 to notify the USCIS for address change.

This is particularly so for U.S. citizens who are no longer subject to Form AR-11change-of-address requirements, since many I-130 petitioners filed as permanent residents, but naturalized to U.S. citizenship after filing. Therefore, USCIS always wishes to remind petitioners of the need to update the USCIS records regarding address changes.





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