Many immigrants are rushing to attorneys to file papers of their marriage to U.S. citizens. Many of them previously thought that once they marry US citizens, it would make them legal but attorneys warn them that it is not the case.
If the case for permanent residence or Green Card has not been filled out and submitted to the CIS or the immigration department, then the person does not have status in the US absent another underlying visa. In most cases, it takes about a year for a foreign spouse to be able to immigrate to the United States.
They need to have a valid marriage. Second, a sponsor’s petition to the U.S. Citizenship and Immigration Service, besides a medical clearance. Finally, a security clearance. More importantly, those with criminal records may find that the adjudication of waivers is stricter under the current administration.
Immigration lawyers face the biggest challenge as a number of people have criminal records and under the Presidential Order 13768, visa and Green card holders with criminal records should be packed off from the United States.
Ironic, but many youngsters have made errors in judgment while as adults they may have lived exemplary lives but the past record does not condone them for immigration purposes. Regrettably, absent an allowable waiver or presidential pardon, says Steven Riznyk, CEO of myImmigrationAttorney.com who provides consultancy on immigration matters in the United States.
Although there is more leeway for nonimmigrants, potential immigrants face a tougher standard and the major among them is drugs. As youths, some people have experimented with one drug or another, and waivers are not available for persons with drug offences that involve more than 30 grams of marijuana, states Riznyk.
"We often receive calls from persons who were removed from the United States for possession of a single dose of ecstacy or mushrooms, and they are not eligible for Permanent Residence status. Even with a waiver for 30 grams or less of marijuana for personal use, the waiver still requires the person to establish to the government’s satisfaction that extreme hardship would result to the person’s U.S. citizen/Permanent Resident spouse, children, or parents. Extreme Hardship is a very high standard to meet and exceeds most monetary, separation, and other issues which in and of themselves are extremely difficult," he said.
The only solutions for many such persons, he said, would be to either obtain a nonimmigrant visa (such as that for an investor) and an INA§ 212(d)(3) waiver, or, in the case of a felony conviction, a Governor’s Pardon. Expungements are not recognized for immigration purposes and Governor’s Pardons and their equivalents must be based from the United States, not from the foreigner’s country or another country.
An INA § 212(d)(3) wavier is purely discretionary though it does not require a showing of extreme hardship. "In my opinion, it is the legal equivalent of neurosurgery, and requires a lot of artful drafting and research. After all of that, there are still risks of it not prevailing," he noted.
Strategically speaking, one could hypothetically apply for the INA § 212(d)(3) waiver and a student or work visa, but realistically, a contribution to society, such as job creation with an L1 or E2 would yield a better chance in my opinion, he stated. "We have been able to use the E2 visa (renewable longer than any other visa) to bring people into the US" for those with no alternatives, he added.