May 1, 2007

Immigrating to the U.S.

Appeared in the Korea Herald
Jan. 31, 2004 Legal Ease Column by Sean Hayes


Dear Sean: I'm an American citizen who married a Korean national three years ago. We intend to move to the U.S. this year. What is the most expedient way to navigate the complicated process? Bewildered in Seoul.

Dear Bewildered: The process to obtain a "green card" (permanent residency) for your spouse seems to be a daunting one, but with a little patience, a lot of time, and the willingness to jump through some often useless hoops you will succeed in your endeavor. Few applicants that are "immediate relatives" of U.S. citizens that properly fill-out all forms, have an adequate source of income, and have not violated and laws or previously been expected of filing false information to the U.S. government are denied the benefit of a green card.

"Immediate relatives" of a U.S. citizen refers to parents, spouses and children (who are unmarried and under 21 years of age) of a U.S. citizen. Immediate relatives of a U.S. citizen can immigrate to the United States without being subject to numerical restrictions, unlike other close family members of U.S. citizens and/or permanent residents. Specifically, they can apply for permanent residency status without a waiting period. Other close family members of U.S. citizens or permanent residents are divided into several groups called "preferences." Each preference is given a numerical quota per year to limit the number of immigrants admitted into the United States. The waiting period for these applicants, depending on the number of applicants from the specific country, are often in excess of a decade. Accordingly, if your spouse is the beneficiary of the green card, no waiting period will be imposed and the only waiting time will be the normal application processing time.

There are two basic scenarios that face most U.S. citizens' spouses when applying for immigration: The first scenario is that the alien spouse is already in the United States in a nonimmigrant status (student/work visa). In this case, the U.S. citizen can file an immigration petition (I-130) along with supporting information and the alien spouse can file an application to adjust status to permanent resident (I-485) at the same time.

The second scenario is that the alien spouse is outside the United States. In this case, the U.S. citizen needs to file an immigration petition (I-130) and Biographic Data Form (G-325A) with the U.S. Embassy and request that the U.S. Citizenship and Immigration Services within the Department of Homeland Security adjudicate the petition. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends "Packet 3" to the U.S. citizen. Packet 3 requires the beneficiary spouse to obtain a medical exam, a police record certificate, and a copy of the Korean Residence Register along with other information. Additionally, an Affidavit of Support (I-864) needs to be filed proving that the U.S. citizen has adequate means to support the spouse. After the necessary forms are completed, the alien spouse should schedule an interview with the U.S. Embassy. The interviews are generally very brief and the visa is usually issued on the same day as the interview.

The process seems a little daunting, but if you file early and be patient the process can be navigated effectively. For more detailed information see: http://travel.state.gov and http://seoul.usembassy.gov.

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SeanHayes@ipglegal.com