Obtain a Green Card Now or Wait for Possible Immigration Reform?

By Attorneys Nancy E. Miller and Frances Arroyo

The future of Comprehensive Immigration Reform is still an open question.  The bill has passed committee and is being debated by the full Senate.  One hundred senators are busy proposing amendments – some of which would add benefits (such as recognizing gay marriages for immigration purposes) and some of which would defeat the ultimate purpose of the bill (such as the proposal that the border would have to essentially be closed before immigrants could get their green cards or citizenship). 

The Senate is aiming to have completed debate and voted on the bill before the July 4 adjournment.  The next step is for the House of Representatives to come up with its version of a bill and open debate.  435 members of the House will have the opportunity to introduce their amendments before their bill is voted on.  Assuming that both the House and the Senate pass a bill, differences in the two will need to be reconciled and voted on again before a final version is submitted to the President.  Only then, after he signs it, will it become law. 

In the meantime, many hopeful immigrants are moving forward.  Instead of keeping their lives on hold, they are pursuing relief that is available today.   The information in this article will explore some of the other way to obtain a green card.

A family-based immigrant visa petition is one way to legalize status.  However, an abusive spouse might not be willing to petition their spouse or children. The Violence Against Women Act (“VAWA”) allows victims of domestic violence to obtain lawful permanent residence (a green card) without being further victimized by their abusers. Under VAWA, victims can “self-petition” or independently seek legal immigration status in the United States.  Victims of domestic violence, battery, and extreme cruelty whose self-petitions are approved may then apply for green cards directly.  Immigrants in abusive relationships need not choose between safety and legal status.  They can have both now under current law.

A family-based petition can also prove challenging when the petitioner dies. In the past, only widows and widowers of U.S. citizens could continue to seek immigration status after the death of their petitioning spouse.  However, a recent change in law known as 204(l) broadened the availability of relief for those who lost someone who was both a family member and a petitioner.  The beneficiary must have resided in the United States at the time of the petitioner’s death, and must continue to reside in the U.S.  If the immigrant needs a waiver for a ground of inadmissibility (such as a misrepresentation), the deceased relative can still be the qualifying relative for the waiver.  This form of relief is available where the petitioner is still alive but the qualifying relative for the waiver is the one who died.   Death of a loved one need not be the end of the immigrant process under current law. 

Employment is another method for obtaining a green card.  It is one of the most common ways of obtaining lawful permanent resident status in the United States. Each year, 140,000 employment-based green cards, spread across five preference categories, are allotted for foreign nationals seeking permanent residence. A U.S. employer who seeks to have a foreign national work for them may sponsor her for an immigrant visa and the immigrant can then apply for a green card.  Employment-based immigrant visa categories are sometimes backlogged.  Since the alien starts at the back of the line, getting “in-line” as quickly as possible is important.  That only happens when one starts the process and files the first papers.  For those who are still in status, or who are still in their home country, non-immigrant employment-based visas are also an option.  Those who enter on an “H” or an “L” non-immigrant visa, for example, may bring their families and work here while they wait for the priority date on their immigrant visa to become available. Aliens who attended school here and who are on or eligible for practical training may be able to get a non-immigrant work visa and move on from there to an immigrant visa. 

Everyone hopes that Congress will finally fix the broken immigration system.  But not all of it is broken.  Many avenues of relief exist today. Some other avenues still open are investor visas, cancellation of removal for longtime residents with children, provisional waivers, and self-petition for K-1s who married but spouse never petition them among others. Is it better to wait 10 to 13 years under the current proposals in Congress or try to get your work authorization and green card now? Will those waiting for reform be eligible for it if it passes?  We don’t know.  We can hope for tomorrow, but the smart move is to act on what is available today.