Get Free Answers From Experienced Lawyers!
Q: Can my American citizen husband petition for me if we live outside the U.S. and I have an expired green card?
My American citizen husband and I are both living outside the United States. We have been married for 5 years and have two children who are American citizens, born outside the U.S. I have a previously expired green card from my first marriage to another American citizen, which was not reactivated when I visited the embassy last year. Although I have a valid tourist visa now, this situation is impacting our family, and we wish to move back to the U.S. Can my current husband petition for me, given my circumstances?
A: So if a lawful permanent residence exits the United States without getting a reentry permit and is gone for more than one year, then the green card is basically going to be forfeited. If you have another American citizen spouse that wants to sponsor you, then yes, you can process at the US consulate overseas and then you can get your green card based on your marriage to your US citizen husband. It would be considered immigration Fraud to want to travel to the United States on a visitor visa and enter with the intention of remaining permanently. You should work with an attorney to process at the US consulate in your country for a green card and then enter the United States after that green card has been granted.
A:
Your current husband can absolutely petition for you through Form I-130, despite your expired green card from your previous marriage. The first step in the marriage-based green card process is filing Form I-130 (technically called the "Petition for Alien Relative") with U.S. Citizenship and Immigration Services (USCIS), and your previous immigration history does not disqualify you from this new petition. Since you are residing outside the United States, you will proceed through consular processing at your local U.S. embassy or consulate once the petition is approved.
The fact that you previously held permanent resident status and allowed it to expire will not prevent your husband from successfully petitioning for you now. In certain circumstances, a U.S. citizen living abroad can file an immigrant visa petition outside of the United States, which may apply to your situation. As the spouse of a U.S. citizen, you fall into the immediate relative category, meaning there is no waiting period for visa availability—you can proceed directly to consular processing once USCIS approves the I-130 petition.
Your processing timeline should be approximately 14 months for the I-130 approval, followed by several additional months for document collection through the National Visa Center and your consular interview. If you have been married less than 2 years when your spouse is granted permanent resident status, your spouse will receive permanent resident status on a conditional basis, but since you have been married for 5 years, you will receive a 10-year green card rather than a conditional one. Your U.S. citizen children can accompany you or join you later, and your tourist visa status has no negative impact on this family-based immigration process.
Justia Ask A Lawyer is a forum for consumers to get free answers to basic legal questions. Any information sent through Justia Ask A Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between Justia and you, or between any attorney who receives your information or responds to your questions and you, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask A Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises, or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.