No one has been excluded from the dire risks and fears we find ourselves having to deal with when it comes to the coronavirus pandemic. However, people visiting their loved ones in the United States from abroad have been facing unique barriers when it comes to travel and family re-unification during these times. 

One of our most frequently asked questions has been from boyfriends, girlfriends, fiancés or spouses of US citizens or Green Card holders who are stuck in the United States and looking at their immigration options. These are usually couples who were planning to get married eventually and may even have been planning their weddings within the next year or two, and now are finding themselves wanting to accelerate their plans due to all the uncertainty. With the change in travel bans either in the United States or abroad, couples are trying to figure out how they can remain together without violating US immigration laws or quarantining rules. One of our most common case scenarios is as follows:

Case Example 1: I was visiting my fiancé in the United States, and now I cannot leave due to the pandemic since there are no flights available and it is not safe to travel. Can I apply for a Green Card while I’m visiting my fiancé based on how scary it is to be separated during the pandemic? 

We receive calls like this multiple times a week from nervous clients. The good news is that the US immigration policies state that it is okay for a foreign national to apply for a Green Card (Adjustment of Status) while visiting the US, provided that there was no intention of applying for a Green Card at the time they were entering the United States. USCIS looks at the actions and intentions that the foreign national fiancé had when they entered the US, and during the 90-days after arrival. To learn more about the 90-day rule, please see https://www.immigrationlawnewyork.com/blog/2018/2/17/love-in-the-age-of-trump

Basically, one must not get married or apply for a Green Card within 90-days of arriving in the US, otherwise USCIS can interpret these actions as having preconceived immigration intent. Of course, if one is marrying a US Citizen, there are ways to work around this based on case law, but one must be careful to not trigger any of the other rules to the Adjustment of Status process.

Case Example 2: I am visiting the United States on a visitor visa and don’t want to be separated from my fiancé anymore due to the pandemic. If he has a Green Card, can he still sponsor me for a Green Card? 

Yes, the Green Card holder can sponsor their foreign national fiancé as long as (1) there was no immigrant intent, as described above; (2) the US Department of State’s Visa Bulletin shows that the F2A category is current; and if the Adjustment of Status is filed before the foreign national’s status has expired. 

If the visitor is traveling on an ESTA or pursuant to the Visa Waiver Program, these cases do have to be handled on a case by case basis. Things get a bit complicated as the initial period that a person with ESTA can stay in the United States is 90-days. So if the couple can’t get married for 90-days after arrival, but the person has to leave before 90-days expire, how can one navigate this difficult situation? These cases have to be handled in a special way due to the immigrant intent rules. In every single one of our consultations regarding these issues, the intent to apply for a Green Card only arose after arriving into the United States, so we have been able to customize a strategy because we find ourselves in unprecedented times. 

The above also apply to other immediate relatives of US citizens, such as when a parent is visiting their adult child (over 21) who is a United States citizen, or a minor child (under 21) of a United States citizen. These are special categories recognized by immigration laws as “Immediate Relatives of United States Citizens,” and are not subject to the limited number of Green Cards available for the other categories for non-immediate relatives. 

Timing Considerations:

USCIS was unavailable to hold in-person interviews due to the pandemic from mid-March until mid-July, but their employees were working from home on a limited scale during these months. When they opened up for in-person interviews in mid-July, they only prioritized naturalization oath ceremonies (swearing-in ceremonies for those that had already passed their citizenship exams).

Around August 15th USCIS slowly, and on a very limited basis, resumed in-person interviews for Adjustment of Status interviews. There are immense backlogs that USCIS is trying to catch up with, so it definitely makes sense for people to get their applications in as soon as possible. Although employment authorization issuance had slowed down and completely stopped at one point, we have seen most of our cases being approved for employment authorizations with minimal delays. USCIS has recently acted to mitigate delays in the production of employment authorization documents by establishing unprecedented rules, such as allowing beneficiaries to work with I-797 Approval Notices, instead of having to wait for the physical employment authorization card to arrive. One does have to make sure, however, that if one uses the EAD Approval Notice that was issued during this period, as a List C document for new employment, they must still provide an acceptable List B identity document for their Form I-9, Employment Eligibility Verification purposes.

We offer immigration services throughout the 50 states of the US as we work with clients internationally to achieve their goals for their American Dream. We feel very fortunate that we are in a position to help people keep their immigration status safe while they can peacefully work on keeping themselves and their families safe.

Over the years, we at Khunkhun Law have helped countless individuals obtain and keep their Green Cards. Retaining one of our attorneys will ensure that your case is in the right hands, as we offer a customized approach to each case.

Contact us to discuss your marriage based Green Card today. You can call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for am immigration consultation.