Coming to the U.S.

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The Immigration 101 series tracks my immigration law class at Hofstra Law School.

In previous Immigration 101 installments I have discussed who is eligible to come to the United States. Now I want to look a little bit more at the process itself. Since there is not time to examine all the possible routes, I am going to look at a simple example.

Maria is a student from Mexico who meets and marries John, a fellow student and U.S. citizen. John wants her to become a U.S. citizen too, so he comes to my office to ask me what he has to do. The first thing I tell him is that she cannot become a U.S. citizen now. She must first be a permanent resident before she can even think of applying for citizenship.

John is a bit confused. He tells me that she is legal and married to an American, so why can she not become an American too.

Sorry John, but she is what we call a NonImmigrant. But, not to despair, John can apply for her to change her status to conditional resident and later to permanent resident. The bad news is that the Department of Homeland Security (DHS),  which took over the responsibilities of the old INS, charges a fee of almost $1,400 to process the application.

I also let him know that the application process is likely to be the most intrusive examination Maria and he ever went through.

I ask John to bring Maria in and I ask her the standard questions. Has she been arrested, any problems with immigration, is she a communist. John finds this a bit obnoxious. He asks if the government would keep him from living with his wife if she was a communist. No, I reply, but you might have to live with her in Mexico, not the U.S.

Then we get into other matters. I ask them how they would prove that their marriage is valid. Well, we have a marriage certificate,John says. Not good enough. The government presumes that marriages of less than two years are fraudulent, I tell him. I ask him to collect documents showing that this is not a fraudulent marriage. Pictures from the wedding, hopefully in front of a lot of smiling family members. Bank accounts with both names on them. I ask if Maria is pregnant, because evidence of pregnancy would be helpful. By now, John is getting a bit sick.

We complete the application and send it in. Maria gets a notice telling her to go for fingerprinting. After she is fingerprinted, her biometric and biographic info will be sent to the FBI and relayed to the CIA to determine if she had any legal troubles in the past or if she is suspected of involvement in terrorism. God help her if she has the same name that, say, a guerrilla in the FARC has. She could find her case stuck for years. She might also be in trouble if she was a victim of identity theft and the thief got into legal trouble later using her name.  Fortunately there are no hits on her. She is clean.

She also gets a notice instructing her to go for a medical examination. She will be poked and prodded and blood will be drawn. If she has any of a number of illnesses, including some STDs, she may be barred from entering. Luckily she is extremely healthy.

She and John then have to go to DHS for an interview on their case. The officer goes over her application. He also reviews a form called an Affidavit of Support submitted by John. In it John discloses his income and assets. He also submits his tax records. When I first told John about this requirement, he was hesitant to do it, but I said that it was an absolute requirement. Just like applying for a mortgage, he said, growing a bit more cynical.

The DHS officer also asks them about their married life together. Did they live in the same house? How often did they see each other? He looks over the wedding album the two have brought with them. He examines receipts from the hotel at the Grand Canyon that they honeymooned at. But the officer is not too concerned. They are both young. Their story makes sense. They look like a cute couple.

He decides to grant the case.

Had they been of different ages, or if one had not spoken English well, of if one had been black and the other white, the interview might have gone differently. These could have led to increased suspicion of a fraudulent marriage. Then a new interview might have been scheduled and the two might have been quizzed separately on the intimate details of their lives together. But we were lucky here. This was a simple one, costing a few thousand dollars and taking eight or nine months.

Even though the case has been granted for John and Maria, she is still not a permanent resident. In two years both John and Maria will have to file a petition to make a permanent resident.

In the next installment, I will look at factors that might have made her receiving permanent residence tougher.

Read other parts of this series:

Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.

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Patrick Young blogs daily for Long Island Wins. He is Director of Legal Services at CARECEN and Special Professor of Immigration Law at Hofstra University. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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