Integrity Legal

Posts Tagged ‘unconditional lawful permanent residence’

5th January 2010

For more information about how the IR-1 visa process works please see: IR1 visa Thailand. For further information about United States Immigration, United States Visas, and United States Immigration attorneys please see: US Visa Thailand.

The IR-1 visa in 2010

As with many of the other types of American visas, the IR-1 visa process seems poised to remain largely unchanged in the year 2010. However, the dawning of a new year, and a new decade, provides this author with an opportunity to discuss the IR-1 visa and how the IR1 visa process works.

For those who are not familiar with the IR1 visa, this is an immigrant visa, sought pursuant to a filing of an I-130 application, for those who wish to travel to the United States of America in order to take up lawful permanent residence. It is a travel document similar to the CR-1 visa. That being said, there is a major difference in the type of status each document confers upon entry in the United States. An IR-1 visa provides the bearer with unconditional lawful permanent residence upon entry. Whereas the CR-1 visa only provides the bearer with conditional lawful permanent residence upon admission to the USA. This can be a crucial difference as conditional residence requires that the couple file for a lift of conditions in order for the foreign spouse to be considered an unconditional lawful permanent resident. This is a critical difference because it means that a foreign spouse who enters in CR-1 status is considered a permanent resident only so long as her marriage remains intact. A divorce or death could lead to a situation where the foreign spouse is forced to depart the United States.

Fortunately for some couples, the conditionality of permanent residence is adjudicated at admission to the United States. Therefore, those who were married less than two years when they applied may be married more than 2 years at admission. In many cases, these couples will have the foreign spouse enter in IR-1 status rather than CR-1 status in order to facilitate later convenience.

CR-1 and IR-1 visas are currently taking approximately 5 months to process through the United States Citizenship and Immigration Service (USCIS) in the United States. This figure presupposes that the foreign beneficiary is a child or spouse of a United States Citizen. The process is very similar to the CR-1 visa process. That being said, there are those in Thailand who opt to submit a local filing at the USCIS office in Bangkok which can greatly reduce the processing time because USCIS: Bangkok has a much lower case load of such petitions when compared to the Service Centers in the United States of America. Also, a local filing does not process through the National Visa Center which can decrease the overall processing time as well.

In order to submit a local filing the couple must meet some fairly strict criteria, but should these requirements be met, the expedited processing time could be a virtual boon to those wishing to move quickly.

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26th December 2009

For Thai-American couples the most common method of immigrating to the USA is through use of a K1 visa. The K1 visa is a fiancee visa granting the bearer 90 days of lawful presence in the United States of America with the option to apply for adjustment of status. If an adjustment of status application is submitted and approved then the Thai fiancee will be granted conditional lawful permanent residence for 2 years. After nearly 2 years the couple should submit a petition for a lift of conditions of the Thai spouse’s permanent residence. Should this petition receive approval, the Thai spouse will become an unconditional lawful permanent resident of the United States of America.

There are some travel restrictions placed upon permanent residents of the United States. Namely, they cannot be outside of the USA for more than one year without endangering their resident status in the USA. For those who remain abroad for more than one year it may be necessary to apply for an SB-1 visa. This is a visa specifically meant for returning residents of the USA. For those who plan to be outside of the USA for a substantial period of time there is a way to forestall a finding of residential abandonment: a US reentry permit. This is a travel document that is very similar to advance parole in so far as it preserves the status of the lawful permanent resident while they remain abroad. These travel documents are generally granted with a validity period of 2 years from issuance.

Recently, this author came into contact with an individual who had lawful permanent resident status in the US, but had lost his Resident Alien Card (“Green Card”) and needed to return to the US. This individual still had a valid US reentry permit. After some research, this author discovered that a United States lawful permanent resident may reenter the country without a proper visa provided that they have a valid United States reentry permit.

To directly quote from the website of the US Embassy in Mumbai:

“Per 8CFR 211.1, an alien in possession of a valid form I-327, Permit to reenter the United states (i.e. reentry permit), does not require a visa to reenter the United States.  Therefore, [one] may travel [to the USA] with [only one's] valid reentry permit.”

In a way, the United States reentry permit is akin to a passport for lawful permanent residents although it is inherently more restrictive than a US passport. For those lawful permanent residents thinking of leaving the USA for a prolonged period of time it may be wise to seriously consider applying for a reentry permit because it provides not only the peace of mind that comes from preserving one’s status, it can also act as a backup travel document in the event one loses their resident alien card.

For related information please see our postings about losing a US passport and obtaining a new one from American Citizen Services at a US Consulate in Thailand.

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23rd December 2009

For those who have been married to an alien spouse for less than 2 years, the only immigrant visa category that the couple may apply for is a CR1 visa. For those who have been married for more than 2 years at the time of application an IR1 visa may be available. Usually, when the alien spouse travels to the United States of America on a CR1 visa he or she will be admitted with conditional lawful permanent residence. However, there is a question on the lips of many couples: what if we were married less than two years when we filed a visa application, but more than two years when we obtained the visa? The answer: the alien spouse’s status at entry may depend upon the duration of the marriage at the time of his or her admission to the United States of America.

For aliens with conditional lawful permanent residence, it is necessary to file for a lift of conditions before the alien will be granted unconditional lawful permanent residence.

When an alien is admitted to the United States, they must pass through a Customs and Border Protection checkpoint, this is commonly referred to as a port of entry. It is a common misconception that a US visa gives the visa holder the “right,” to enter the USA. In reality, a visa only provides the bearer with the right to travel to a US port of entry and ask for admission. When a CR1 visa holder travels to the USA they are admitted in lawful permanent residence, but the conditionality of that residence is determined by the Customs and Border Protection Officer admitting the alien. For couples who have had their two year anniversary before the alien spouse’s first trip to the USA, Customs and Border Protection will likely admit the alien spouse to unconditional permanent residence because conditionality is determined at the time of entry.

In some cases where a couple fails to meet the two year marriage requirement, but their second anniversary is in the very near future, it may be prudent for them to simply wait until after their second anniversary before the alien spouse asks for permission to enter the US for the first time. This way, the couple would not need to apply for a lift of conditions after the alien spouse enters the USA because the alien spouse will likely be granted unconditional permanent residence upon arrival in the United States.

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