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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. The Children’s U.S. Visa Eligibility after Marriage with a U.S. Permanent Resident
If
your spouse has a U.S. green card, your children who are unmarried and
under age 21 are considered derivative beneficiaries. This means that
the children will not need a separate initial visa petition (Form
I-130) filed for them in order to be included in your immigration
process. Unlike many other applicants, they also would not need to
prove that the petitioning spouse is their parent or even stepparent,
because they are riding on the immigrant's application. They will share
the immigrant's place on the visa or green card waiting list, and most
likely get a visa at the same time as the immigrant, provided they
remain unmarried.
Children who have gotten married will not be able to immigrate to the
United States at the same time with their parents. They will have no
visa options until the petitioning spouse becomes a U.S. citizen, and
files a visa petition for them in category 3 of the Visa Preference
System, which has a very long waiting period. Of course, to do this,
the spouse would have to prove that he or she is either the
child’s legal stepparent or the biological parent.
5. 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.
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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.
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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.
6. 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.
7. 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.
8. 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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