FB2A Current in August 201319 Jul 2013
As predicted, the family-based, second preference “A” category (FB2A) for spouses and minor children of lawful permanent residents (LPRs, or “green card holders”) is current under the August 2013 Visa Bulletin. A more thorough review of this category is provided in the MurthyDotCom NewsBrief, FB2A Could be Current, Act Quickly (17.June.2013). The FB2A category being current potentially provides an eligible applicant with a relatively quick path to becoming an LPR. However, it also may lead to certain pitfalls that one must take care to avoid in order to prevent immigration problems.
No Guarantee When FB2A Will Retrogress
For the time being, the FB2A is an immediately available option for the spouse and/or child/ren of an LPR to file for adjustment of status (I-485) within the United States and obtain employment authorization and advance parole. This filing must be based upon a form I-130 relative petition. It is important to act quickly, as the availability of visa numbers in this category for all applicants is historic. While it is unknown how long the category will remain current, what is known is that it will not remain current indefinitely.
Filing for Adjustment of Status
An I-485 application can only be filed if the foreign national is in the United States. This application contains a number of procedural requirements regarding status and other eligibility factors. If those requirements are satisfied, and the priority date is current, it is possible to concurrently file the I-130 relative petition with the I-485. This also has the advantage of allowing for a request for an employment authorization document (EAD) and advance parole (AP).
Requesting Consular Processing
Spouses (or fiancé/es) who are living outside of the United States face a very different situation. Individuals who are processing from abroad must use consular processing. Such applicants need to undergo a multistep, somewhat lengthy process. Therefore, those who are just now considering the I-130 filing (or contemplating marriage, and seeking to file a green card case once the marriage is finalized), are likely to find the current window of opportunity in the FB2A category too brief. This does not mean that individuals should not move forward with FB2A cases. It simply means that they must be realistic in their expectations for the uncertain future in this volatile category.
Provide Honest Reason for Seeking Entry to U.S.
When confronted with the realization that an adjustment-of- status application may be far more beneficial than filing an FB2A case for consular processing, an individual may look for ways to bring his/her spouse (or potential spouse) to the United States so that the I-485 can then be filed. There may be a temptation to attempt to hide relevant information from the consular or port of entry officer in order to improve one’s chances of getting into the country. While the desire to reunite the family is understandable, it is critical not to allow this desire to cloud one’s judgment. Providing false or misleading information to a U.S. immigration official is a serious offense that can lead to long-term negative consequences. Typically, this arises when a foreign national looks into applying for a student (F-1) or visitor’s (B-1/B-2) visa, or seeks to enter the United States with such an existing visa. The problem is that both of these classifications require nonimmigrant intent. An attempt to come to the U.S. in F-1 or B-1/B-2 status with the intention of getting married and adjusting status could lead to allegations of fraud or misrepresentation.
Visa Application Must Include Relatives or Fiancé/e
As part of the visa application process, a foreign national must complete the nonimmigrant visa application from (DS-160). This form specifically asks questions about whether the applicant has any relatives in the United States. If one is married to a permanent resident, this must be disclosed in the DS-160. The form also asks whether there is a fiancé/e in the United States. Problems commonly arise related to this, as the definition of “fiancé/e” is a bit unclear, and there are cultural differences that may influence the interpretation of these terms. If a foreign national has the intention of marrying a specific individual, however, and this individual shares the same plan, it is appropriate and proper for him/her to be referred to as one’s fiancé/e. While the existence of such a relationship is usually considered contrary to having a purely nonimmigrant intent (meaning that there is a good chance the application will be denied), the desire to obtain an F-1 or B-1/2 visa must not override the importance of being honest and forthright when dealing with U.S. immigration officials.
Severe Penalties for Providing False Information
If an individual is found to have lied on a visa application (or to a Customs and Border Protection officer at the port of entry), this is likely to be categorized as fraud or misrepresentation. A foreign national who commits an act of fraud or misrepresentation to obtain an immigration benefit is deemed “inadmissible” to the United States, which means s/he is prohibited from entering the U.S. This is a permanent bar with limited options for waivers or forgiveness. The U.S. government takes this very seriously; so foreign nationals are strongly urged to be truthful in their dealings with immigration officials.
Those who need guidance on whether and how they can benefit under the FB2A category are encouraged to schedule a consultation with an attorney at the Murthy Law Firm. MurthyDotCom will continue to follow developments related to this this important family-based immigration option.
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