Frequently Asked Questions
We hope this page helps you through the initial stages of your immigration process. Click on one of the boxes below to quickly jump to the section pertaining to your interest. The information found on this page does not replace legal advice for any individual, case or situation as each case is unique. Immigration cases can be complex and can be affected by changes in immigration laws.
For an individualized consultation regarding your case, please call Mario at 210-570-7758.
FAMILY BASED RESIDENCY
Can my spouse help me obtain permanent resident status, also known as a green card? Yes. The law allows U.S. citizens and permanent residents to petition and sponsor their spouses by proving they have entered a good faith marriage with their spouses. Evidence of good faith marriage can be children born to the couple, evidence of living together (cohabitation), joint finances, and letters of support from family members and friends.
Does it matter how long I have been married to my spouse in order for me to obtain permanent residency? Yes. Immigration will grant you permanent residency if you are married longer than 2 years at the time your residency application is approved. If you are married less than 2 years at the time of your approval, Immigration will grant you a conditional residency and require you to file an application, I-751, to remove the conditions of your residency before you complete 2 years as a conditional resident. USCIS will reevaluate your marriage during this I-751 application process.
My child is a U.S. citizen. Can they help me obtain permanent resident status? Yes. The law allows U.S. citizens who are at least 21 years of age to petition and sponsor their parents, including adopted and step parents. Your child must prove that the parent-child relationship existed before the child was 16-18 years of age, and continues to exist after the child turns 21 years of age.
Can I petition other family members other than my spouse for permanent residency? Depends on your immigration status. U.S. citizens are also allowed to petition and sponsor their parents, children under 21 years of age, married and unmarried children over 21 years of age, and siblings. Permanent residents are only allowed to petition and sponsor their spouses, children under 21 years of age, and unmarried children over 21 years of age. Unfortunately, permanent residents are not allowed to petition and sponsor their married children, parents, or siblings.
What is the application process to obtain residency in the U.S.? Generally, obtaining resident status is a three-step process:
Establish the marriage relationship (Form I-130)
Apply for resident status (Form I-485 or Form DS-260)
Attend the residency interview and await approval
Can I complete the resident status process in the U.S. if I live here? Depends if you have a legal entry into the U.S. when you last entered and are otherwise eligible for the adjustment of status to residency process. An applicant is allowed to adjust status to resident and interview in the U.S. if they can prove that they:
Were inspected and admitted, or paroled using DACA or TPS advance parole, at a port of entry (border or airport) by an immigration official
Continue to have legal status or overstayed their legal status and have not exited the country
Are being petitioned and sponsored by a U.S. citizen spouse, child, or parent if applicant is under the age of 18 years old. An applicant who is being petitioned and sponsored by a permanent resident spouse, or parent if applicant is under 18 years of age, may complete the process in the U.S. if applicant currently has valid and unexpired legal status. If the applicant does not have current legal status or entry, they must complete the application process known as consular processing and return to their home country for an interview at a U.S. embassy or consulate
If I don’t have a legal entry, is there another way to complete the residency process in the U.S.? You may if you used an advance parole permit for DACA and TPS when you last entered the U.S. You may also complete the residency process in the U.S. if you are eligible for other forms of relief from removal such as acquisition or derivative citizenship, 245(i) adjustment of status, U visa, Violence Against Women Act (VAWA) visa, asylum, or cancellation of removal for non permanent residents. If the applicant is not eligible for advance parole or other forms of relief, then they must complete the application process known as consular processing and return to their home country for an interview at a U.S. embassy or consulate.
If I consular process and return to my home country because I unlawfully entered the U.S., will I be allowed to return to the U.S. after my interview? Depends if you have successfully obtained from USCIS a waiver for unlawful presence, Form I-601A, before you exited the U.S. for your interview in your home country. Immigration law states that a person who unlawfully enters the U.S. or overstayed their legal status and accumulated more than 6 months in unlawful presence, will trigger a 3 or 10 year bar from immigration benefits, including residency applications, if they exit the U.S. Immigration does not excuse your exit even if it is an emergency or for purposes of interviewing for residency. An approved I-601A waiver will help excuse your unlawful presence and allow you to reenter the U.S. if you are approved for residency after your interview. If you exit the U.S.for your residency interview without an approved I-601A waiver, the U.S. embassy or consulate will require you successfully acquire a general I-601 waiver from USCIS before approving your residency application.
Can I obtain a work permit card and legally work during my residency application process? Yes, but only if you are eligible to apply for residency under the adjustment of status process. Applicants under the adjustment process may apply for a work permit card and a social security number as they wait for a decision on their application. If the applicant receives an approved work permit card and social security number, they are permitted to seek authorized work as long as their application is pending with USCIS. Unfortunately, applicants seeking residency under consular processing are not eligible to apply for a work permit card unless they are eligible under some other form of immigration relief category such as DACA, TPS, or others.
Can I obtain residency if I have been arrested, charged, or convicted of a crime? It depends on several factors. Criminal acts, including arrests or convictions, are interpreted differently in Immigration law. Thus it is essential to consult an experienced immigration attorney before making a plea in a criminal court or before filing any residency application with Immigration.
Naturalization and Citizenship
How can I become a U.S. citizen if I am a permanent resident? The process is called naturalization. A permanent resident may naturalize to a U.S. citizen if they meet the following requirements:
Have been a permanent resident for at least 5 years, or for at least 3 years if you’re filing as the spouse of a U.S. citizen
At least 18 years old when you apply
Able to read, write, and speak basic English
A person of good moral character, including no convictions and paying your taxes
Continuously and physically resided in the U.S.
Can I conduct my interview and civics exam in my native language if I am not fluent in English? Yes, if you meet certain age and years of residency requirements. An applicant may qualify for an exception from the English requirement if before filing they are:
Age 50 or older and resided in U.S. as a permanent resident for at least 20 years
Age 55 or older and resided in U.S. as a permanent resident for at least 15 years
Age 65 or older and resided in U.S. as a permanent resident for at least 20 years.
Applicants may also be exempt from the English requirement if they suffer from a medical disability and USCIS accepts their Medical Disability Exception (Form N-648). USCIS will conduct the interview in your native language through an approved interpreter
How many questions are in the civics exam? Overall, an applicant must learn 100 questions about the fundamentals of the history, the principles, and the form of government of the United States (civics). At the naturalization interview, the applicant must correctly answer at least 6 of 10 questions to receive a passing grade from the immigration officer.
Do I really have to learn all 100 questions in the civics exam? Yes. Generally an applicant must learn all 100 questions to ensure success. The immigration officer will randomly ask the questions from the approved list of questions. However, an applicant that is age 65 or older and resided in U.S. as a permanent resident for at least 20 years, may be given special consideration by the immigration officer and administered a “simplified” version of the exam, which contains only 20 questions.
Will USCIS deny my naturalization application if I fail my English or civics exam? If an applicant fails the English exam, civics exam, or both, at their interview, USCIS will reschedule a second opportunity for the applicant to appear for a second examination between 60 and 90 days after the initial examination. However, if the applicant fails a second time, USCIS will deny the application and the applicant must reapply for naturalization to begin the process again.
Do I need a valid and unexpired permanent resident card to apply for naturalization? Depends on the rules and policy of the USCIS field office that will conduct your interview. Generally, if you apply for naturalization 6 months or more before the expiration date on your permanent resident card, and your card expires before your interview date, you do not have to apply for a new card. However, if you apply for naturalization less than 6 months before the expiration date on your card, or your card is already expired when you apply, USCIS may require you to obtain a new card before your interview. Please contact the USCIS field office with jurisdiction of your application to learn more about their policy.
I was not born in the U.S. and am not a permanent resident, but my parent(s) or grandparent(s) is or was a U.S. citizen. Am I a U.S. citizen? Maybe. A child may “acquire” or “derive” citizenship from a U.S. citizen parent though a child is born outside the U.S. If at least one parent was a U.S. citizen at the time of the child's birth, the child automatically "acquires" citizenship. A child may also “derive” citizenship if a parent naturalizes before the child:
Turns 18 years of age
Was admitted or adjusted to a permanent resident
Continued to live with the parent at the time of naturalization.
As the law of acquisition and derivation of citizenship has repeatedly changed over the years, you'll need to look at the law that was in effect on the date of the child's birth (and the parents' birth, if grandparents were U.S. citizens who might have passed it down to the parent) for guidance
DACA and TPS Status
What is DACA? On June 15, 2012, President Obama created a new policy calling for deferred action for certain undocumented young people who came to the U.S. as children. Applications under the program which is called Deferred Action for Childhood Arrivals (“DACA”) began on August 15, 2012.
Who is eligible to apply for DACA? Individuals who meet the following criteria can apply for DACA:
Are under 31 years of age as of June 15, 2012
Came to the U.S. while under the age of 16
Have continuously resided in the U.S. from June 15, 2007 to the present
Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012
Were physically present in the U.S on June 15, 2012, and at the time of making the request for DACA with USCIS
Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces
Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors of any kind
Do not pose a threat to national security or public safety
How old do I have to be to apply for DACA? In general an applicant must be at least 15 years of age at the time they apply. The exception to this rule is if the applicant is in removal proceedings, has a final order of removal or has an order of voluntary departure: then, they can seek DACA even if they are below the age of 15. If the applicant was 31 years of age or older as of June 15, 2012 they are not eligible for DACA.
If I am granted DACA status, will I be eligible to work? Every individual who is granted deferred action will be lawfully permitted to work. In order to be permitted to work, applicants must include an application for an Employment Authorization Document (EAD) in their application, which, when granted, will be valid for a period of two years and may be renewed. Applicants must wait until the EAD is issued prior to accepting employment.
If I am granted DACA status, may I be granted advance parole to exit and reenter the U.S. No. Under current USCIS policy, USCIS is not accepting requests from DACA recipients to apply for advance parole.
If I am granted DACA status, may I apply for permanent residency? Yes, if you are eligible to apply for residency under family based or employment based immigration processes. DACA status does not unilaterally grant you a pathway towards permanent residency.
Is USCIS currently accepting applications for initial DACA status? No. Under current USCIS policy, USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA.
Is USCIS currently accepting applications to renew DACA status? Yes. Although the DACA program is currently the subject of Federal litigation, USCIS is accepting applications to renew DACA status and approves them if the applicant meets all other eligibility requirements.
Can I apply to renew my DACA status if it already expired? Yes. If you apply to renew your DACA status less than 1 year after your status expired, USCIS will accept your applications. However, if you are attempting to renew your DACA status 1 year after your status expired, USCIS will require you submit your applications as an initial request, and submit all initial supporting documents of eligibility again.
What happens if an applicant’s DACA status is revoked or renewal denied, or the program is officially terminated? DACA recipients return to the immigration status that the person held prior to receiving DACA, unless that status has expired or the person has successfully acquired a new immigration status. DACA recipients who entered the United States without inspection and who are not eligible for other immigration benefits, for example, would return to being undocumented at the end of DACA status and become subject to removal.
What is TPS? Temporary Protected Status (TPS) is a temporary immigration status provided to nationals of certain countries experiencing problems that make it difficult or unsafe for their nationals to be deported there.
Who is eligible for TPS? An individual must demonstrate that they are:
Be a national of the foreign country with a TPS designation (or if stateless, have last habitually resided in a country with a TPS designation)
Be continuously physically present in the United States since the effective date of designation
Have continuously resided in the United States since a date specified by the Secretary of Homeland Security; and
Not be inadmissible to the United States or be barred from asylum for certain criminal or national security-related reasons, such as individuals who have been convicted of any felony or two or more misdemeanors.
What countries have been designated for TPS? El Salvador (Extended until January 4, 2021); Haiti (Extended until January 4, 2021); Honduras (Extended until January 4, 2021); Nepal (Extended until January 4, 2021); Nicaragua (Extended until January 4, 2021); Somalia (Extended until September 17, 2021); South Sudan (Extended until November 2, 2020); Sudan (Extended until January 4, 2021); Syria (Extended until March 31, 2021); and Yemen (Extended until September 3, 2021).
Does TPS create a path to permanent residence or citizenship? TPS does not provide recipients with a separate path to permanent residency or citizenship. However, a TPS recipient who otherwise is eligible for permanent residence may apply for that status.
What happens to a TPS recipient when a TPS designation ends? TPS recipients return to the immigration status that the person held prior to receiving TPS, unless that status has expired or the person has successfully acquired a new immigration status. TPS recipients who entered the U.S. without inspection and who are not eligible for other immigration benefits, for example, would return to being undocumented at the end of a TPS designation and become subject to removal.