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The family-based green card process has two main paths for an immigrant to follow. Depending on which path you are obligated to follow, you will either have your interview inside the U.S. with your sponsor or you will have the interview by yourself in your home country. It is technically possible to choose where to have your interview, but the options are actually very limited and depend on a number of factors such as: the type of relationship with the sponsor, the sponsor’s legal status in the U.S., the immigrant’s travel history inside the U.S. and especially the immigration history of the applicant.
So, who can have their interview inside the U.S.? For the most part, only those who have entered the U.S. legally and who have maintained their legal status are eligible for completing their green card process fully inside the U.S. There are other categories of immigrants who entered the U.S. illegally yet they are still able to remain in the country for their interview. Some individuals are fortunate enough to qualify for special eligibility considerations that will allow them to remain in the U.S. For example, those who have requested and been granted what is called advance parole can file and interview for their green card inside the U.S. after successfully leaving the country and upon being readmitted into the U.S. The most common examples of advance parolees are those who qualify under Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS).
Another group of immigrants who can qualify for special consideration to be allowed in-country processing of their green cards are DACA recipients who entered the U.S. legally and who obtained their DACA status while they were still minors. Since the law does not punish children as harshly as an adult, immigration will extend special protection to a DACA recipient to allow them to qualify for a much easier green card eligibility process. The key to this protection is that the special status only applies to those who have maintained DACA prior to turning 18 all the way up to the time of the green card filing. If you let your DACA status lapse at any point, you will accumulate what is called “unlawful presence” in the U.S. and may not be able to qualify for green card processing in the U.S.
Now that we know which immigrants qualify for interviewing inside the U.S., who is automatically required to be processed for their interview outside the U.S.? in short, virtually all other applicants must leave the U.S. for their interview, including those with a history of unauthorized entries or those who entered lawfully, but whose legal status expired prior to starting the green card process. This is commonly referred to as a “visa overstay.” And used to not be a problem at all. In the past, an applicant could still get a green card even after 10 years of overstaying a visa. This is no longer true.
Today, those who have filed their green card requests inside the U.S. and who have a visa overstay in their record are receiving denials for their applications and are then being forced to leave the U.S. for their interviews. Prior to President Biden’s administration, the most important aspect of an immigrant’s history was whether they entered legally. No longer is that true. Biden has decided to be very harsh on immigrants who have overstayed their visas and even one single day of being out of status at the time of a green card filing is being punished. Visa overstay applicants don’t just have the inconvenience and added expense of having to travel outside the U.S. for their interview, but they now face the significantly more serious problem of automatically having a 10-year bar applied to their immigration case. Due to this bar, applicants are now required to apply for some sort of waiver request to be able to obtain their green cards. This new policy has fundamentally and significantly changed who and how an immigrant can legally reside in the U.S.
As immigration processes and procedures continue to change, it is ever more important for applicants to consult with an experienced immigration attorney prior to filing any request. If you believe you are eligible for a green card or have any questions about the proper process to follow, please contact our office to schedule a consultation. You can do this either by calling our office at 616-805-3435 or by using the following link to schedule an appointment online: https://marvinlawoffice.com/schedule-a-consultation/