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When filing for residency in the United States does the immigrant need to return to his country of citizenship?

Cedar Rapids, IA |

My fiance is from Europe. He came to the United States legally but his passport expired last week. We decided to get married prior to our wedding next year to work through any potential obstacles and to save money. We are ready to start the process of filing for his residency but we are concerned that he may need to return to his country of citizenship for several months before he can even get his work permit. Can anyone please elaborate on this?

I am a citizen but my husband did not come on a visa. He came here with a visa exemption four years ago because his grandmother was having health problems. The exemption was for three months. His grandmother continues to have health problems and that's why he stayed. Then we met and now we are married.To be exact, my fiance (who is now husband actually) is from Belgium.

Attorney Answers 7

Posted

Are you a U.S. citizen? If so and if he came on a valid visa (even if now expired), you can file your I-130 and I-485 adjustment of status application in the United States and without him returning to his home country. You can apply for a work permit at that time as well. You might want to hire an attorney to help you with this. Good luck!

www.gassonlaw.com - Disclaimer: This a general answer to your legal question. Unless you have a signed engagement letter with me, you should not consider this information to be legal advice.

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Asker

Posted

Yes, I am a citizen but my husband did not come on a visa. He came here with a visa exemption four years ago because his grandmother was having health problems. The exemption was for three months. His grandmother continues to have health problems and that's why he stayed. Then we met and now we are married.

Kristina A. Gasson

Kristina A. Gasson

Posted

It sounds like he entered on either on the visa waiver program or humanitarian parole? If it was humanitarian parole, he will have to return to his home country to interview for a green card. You should definitely hire an attorney in this case.

Asker

Posted

he came with the visa waiver program

Kristina A. Gasson

Kristina A. Gasson

Posted

Then you should be fine filing for a green card in the US using adjustment of status.

Posted

since he entered lawfully, he does not need to return. I highly encourage you to speak to an experienced attorney so that you guys have a full understanding of the process

This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.

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Posted

He does not need to return even though his passport has expired so he is now illegal?

Irene Vaisman

Irene Vaisman

Posted

he lost his status, but he entered lawfully and if he has a way of proving it (the expired passport), he does not need to go back, in fact it would be bad if he does. Depending on where he is from, he can probably get the new passport here through the Consulate. retain an attorney - it is a messy process and you should be represented.

Posted

I agree with my colleagues. There is also a concept called immigrant intent that could come up depending on how and when he entered, and whether he knew at the time that you would be marrying and then seeking residency. I recommend you seek the consul of an immigration attorney to iron out all the details.

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Posted

Generally it is not a problem to file without leaving the U.S., however it depends on the type of entry he made. Meet with a lawyer in person to get all of the information you need.

The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.

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Posted

I concur with my colleagues, generally speaking, if you are a citizen and your spouse was lawfully admitted into the U.S., then he should be eligible to adjust his status to a lawful permanent resident without leaving the United States. However, there are some specific issues to be aware of here, and you should contact an attorney to make sure this is set up to be a smooth process.

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Posted

Since he entered on a visa, he can probably adjust and stay in the US. Have an attorney confirm that the visa that he used will allow this. Even if he used visa waiver, he should be able to adjust in the US without leaving. He can normally renew his passport his country's embassy or consulate in the US.

This answer is not to be construed as legal advice. For a free telephone consultation, contact us now at: info@moralespllc.com (512) 215-5235 Austin, (214) 377-4822 Dallas, (713) 242-1783 Houston, (210) 957-8845 San Antonio Please dial extension 500

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Posted

I am a citizen but my husband did not come on a visa. He came here with a visa exemption four years ago because his grandmother was having health problems. The exemption was for three months. His grandmother continues to have health problems and that's why he stayed. Then we met and now we are married.

Posted

His entry was with inspection, so generally speaking he can adjust while in US. However, I suggest speaking to an attorney to discuss your matter in more details. Good Luck!

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