The application process for a green card (officially known as a permanent resident card), may be initiated either within or outside of the United States. If you process from within the United States, it is called adjustment of status. If you process from abroad, it is called consular processing. It is important to have a foundational knowledge of which pathway you must take so that you don’t waste your time, money, and energy on a process that will ultimately be denied.
There are two basic ways that you can apply for a green card through a family-based petition from within the United States. They are found in section 245(a) and 245(i) of the Immigration and Nationality Act (INA).
- 245(a) eligible: Under this section, a person is eligible to apply for a green card in the United States if they can prove they are physically present in the United States and that they entered the United States with inspection. This applies to people who entered the United States with a visa or other entry document, even, in some cases, if their status is currently expired.
- 245(i) eligible: Under this section, a person can apply for a green card from within the United States — regardless of how they entered the country – so long as they are the beneficiary or the derivative beneficiary of an immigrant petition or labor certification filed prior to April 30, 2001. If the petition was filed after January 14, 1998, they also have to prove they were in the United States on December 21, 2000.
A green card application from within the United States can be a good option for applicants who both wish to avoid family separation and wish to obtain a work permit while they wait for their green card.
When to apply for a green card from abroad
Applicants unable to apply from within the United States will be required to file for a green card from outside the United States. If an applicant has never been in the United States unlawfully, then they can proceed with their process without any penalties.
For those who are applying for a green card from abroad, but have spent time in the United States unlawfully since April 1, 1997, their case is more complicated. If a person has accrued six months to one year of unlawful presence in the United States before departing for their visa interview abroad, they will be required to wait three years outside of the United States before obtaining their green card (3-year unlawful presence bar). If someone was unlawfully present in the United States for one year or more before departing the United States, they will be required to wait ten years outside of the United States before being allowed to obtain their green card (10-year unlawful presence bar). However, there is a waiver of unlawful presence (601A hardship waiver) that can help those who qualify to obtain their green cards right away, without having to wait three or ten years outside of the United States.
601A Hardship Waiver of Unlawful Presence
To qualify for an unlawful presence waiver, you must show that you have a qualifying relative that will suffer extreme hardship if you are not granted your green card. A qualifying relative includes your U.S. citizen or Lawful Permanent Resident (LPR) spouse or parent. Unfortunately, a USC or LPR child does not qualify for the hardship waiver. The application is submitted on form I-601A. Proving that your family member will suffer extreme hardship without you can be quite difficult. The standard for extreme hardship is discretionary and must rise above the “usual” or “expected” hardships that a family would face from separation.
How Vanderwall Immigration can help
The Green Card application process can be daunting for applicants. It involves several different legal factors that could make-or-break your chances at obtaining a green card.
An attorney who understands immigration law thoroughly can properly guide you through the entire process, whether you apply from within the United States, or return to your home country for your final interview. At Vanderwall Immigration, we have processed hundreds of green card applications from within the United States and from other countries around the world. We have great experience that we can use to make your case successful.
Don’t take a chance with your Green Card application. Our attorneys are here to help you become a legal resident of the United States.
If you do not get the proper help, your application may be denied or greatly delayed, and you may lose all fees paid, have to pay to re-apply, and possibly be placed in deportation proceedings. Call Vanderwall Immigration (located in Beaverton, Oregon) at 503-206-8414 to avoid these potential outcomes and start living the life you want to live today.