Getting A Green Card Through Family

First, keep in mind that to be an immediate relative, you must be related to a U.S. citizen and not merely a lawful permanent resident or green card-holder.

Second, to be a “child” of a U.S. citizen, the child must be under the age of 21 and unmarried. Notably, stepchildren are included, meaning that a U.S. citizen parent can petition for them.  However, in order to qualify as a stepchild, the marriage between the stepparent and the biological parents must have taken place before the child turned 18.

Third, the State of Texas recognizes common law, or informal marriages. To establish a common law marriage, the couple must live together, have an agreement to be married, and hold themselves out to others as married.  This is very common in Texas, where a man and woman refer to each other as husband and wife, and live as a married couple, but never formalize the marriage. In immigration law, recognizing a common law marriage can make all the difference, especially in order to establish that a child is a stepchild.

Fourth, you can’t be married to someone unless you’ve finalized any and all previous divorces.  Sounds obvious, right? Nonetheless, we’ve had several clients that assumed their divorces in Mexico were finalized.  Later they found out that wasn’t the case. Immigration won’t recognize your current marriage unless you’ve taken all the necessary steps to terminate your prior one.  

You may be barred from getting a green card based on negative immigration history.  

One set of immigration history-related bars is tied to unlawful presence in the United States. So if you are illegally present in the United States for a certain period of time, you may face a bar to seeking a green card.  Many immigrants refer to this bar as a punishment or penalty.

More specifically, if you are unlawfully present in the United States for more than a year, and you leave the United States (which you’re required to do if you have to consular process), you’ll trigger this bar of inadmissibility.  If you’re unlawfully present here for between 6 months but less than 1 year, and you leave the U.S. voluntarily before being placed in removal proceedings, you’ll face a 3-year bar. In addition, if you’re here illegally for a year or more, you leave the U.S., and then return or try to return without being admitted, then you’ll face a 10-year bar.  

If one of these bars seems to apply to you, don’t fear.  There are waivers or pardons available in some instances. You can read more about them here.

In addition, what may seem to be unlawful presence doesn’t always count as unlawful presence.  For example, children under the age of 18 years do not accrue unlawful presence. Neither do immigrants with pending asylum applications.  There are additional exceptions to unlawful presence in cases of battered spouses and children and victims of human trafficking.

Another set of immigration history-related bars is tied to removal or deportation orders.  If you’ve been ordered removed, and left the United States, you’ll face a 10-year bar to admission.  As long as you don’t reenter or try to reenter the U.S. illegally, you can get a waiver or pardon for this bar to avoid spending 10 years abroad.  If you’ve been ordered removed, but then reenter the U.S. illegally, you’ll normally have to wait outside the U.S. for 10 years before applying for a waiver.

In deciding whether these bars apply to you, we’ll have to determine whether, in fact, you’ve been ordered deported.  Many times people are sent out of the U.S. by an immigration official without receiving a formal deportation order. (These are sometimes called “voluntary returns” and were very common near the border.)   There’s also something called voluntary departure, which can be granted by an immigration judge. A grant of voluntary departure is not a deportation order, but it can turn into one if you don’t leave the U.S. when you’re supposed to.  

Figuring out whether our clients have deportation orders is absolutely critical.  When we’re not sure, we’ll often file records requests with multiple government agencies.  In any case, it’s better to be safe than sorry.

A person’s criminal history can often affect his or her eligibility for a green card. Below, we’ll review some common offenses to discuss how they impact one’s ability to fix their papers.

Driving While Intoxicated.  

Typically, DWI offenses are not in and of themselves bars to getting a green card.  But sometimes they are. If you have a recent DWI, or multiple DWIs, you may be barred from getting a green card if the government finds that you are a substance abuser or addict.  A finding as such is more common during consular processing than adjustment of status.

Assault or Domestic Violence.

Assault offenses, depending on the state and offense level, can bar one from getting a green card.  For example, the government may decide that the offense is a “crime involving moral turpitude.” In Texas, Class A Misdemeanor Assault is not considered a crime involving moral turpitude.  Neither are less offenses, like Assault by Offensive Contact (a Class C misdemeanor). Aggravated assault, by contrast, is more likely to result in a bar to getting a green card.

Drug Possession.  

All drug offenses, however minor, may be bars to getting a green card.  A small subset of these can be waived. If you were convicted only once of possession of marijuana under 30 grams, you may qualify for a criminal waiver.  Other possession offenses are not waivable when seeking a green card (e.g. heroin, cocaine, meth, etc.). If you have a drug conviction, and are interested in getting a green card through a family member, contact us a for a consultation.  We may be able to find a solution. Often minor drug offenses do not result in convictions for immigration purposes, particularly when the prosecutor agreed to something called “pre-trial diversion.” In addition, depending on where you were convicted, a drug offense may not have any immigration consequences at all.  (The definition of a “controlled substance” in a particular state doesn’t match the definition under federal law.) Drug trafficking typically has significant immigration consequences. If the government has mere “reason to believe” you have trafficked in drugs, you may be disqualified from getting a green card.

Theft and Fraud.  

Often these offenses will bar you from getting a green card, as the government may find that they are “crimes involving moral turpitude,” or CIMTs.  This isn’t always the case. For example, in many states, theft is not always a bar to getting a green card, because it doesn’t require an intent to permanently deprive the victim of property.  Our attorneys do an in-depth analysis of every crime to determine its immigration consequences.