Am I in the U.S. illegally while I await my marriage-based green card interview?

QUESTION:
 

I am Japanese and got married to an American citizen last week. I came to the U.S. with a B-2 visitor visa that expires in three weeks. I will apply for my green card next week. But I am afraid about something: After my visa runs out, will I be staying here illegally until I get the green card?

ANSWER:
 

Worry no more. As soon as you file your application for a green card ("adjustment of status"), your stay in the United States becomes legal -- since you are now married to a U.S. citizen. In fact, you can apply for a work permit soon after you turn in the rest of the application. Then you'll be able to wait legally in the United States -- and wait, and wait. It often takes USCIS around a year to get to your application.

That said, there is something you may need to worry about. Did you get that tourist visa just to get married and apply for a green card in the United States? If so, that's a misuse of the tourist visa, and USCIS could deny your green card application because of it. You would probably need an attorney to help you ask for a waiver, or "forgiveness." However, if you met your soon-to-be-husband after you came as a tourist, or if you weren't sure whether you wanted to marry when you came, you should be okay.

We also need to warn readers who aren't married to U.S. citizens: If your spouse is a permanent resident (green card holder), merely having him or her submit an I-130 visa petition for you is not enough to make your stay in the United States legal. The guidance above refers only to people married to U.S. citizens, who are allowed to submit the actual green card (adjustment of status) application, which for you will be the very last stage of a long process. If you're married to a permanent resident, you'll only be able to submit the green card application after your spouse starts the process for you by submitting an I-130 visa petition, and you spend a few years on a waiting list.

My abusive husband threatens to stop sponsoring me for a green card -- what can I do?

QUESTION:
 

I'm married to a U.S. citizen who mistreats me both physically and emotionally. He started the process of applying for my green card, but the application is still pending. I'm afraid he'll refuse to continue with the green card process if I call the police or leave him. More than that, I'm afraid he'll take the kids and let the immigration authorities deport me. What do I do?

ANSWER:
 

This must feel like quite a trap -- stay with your husband and be abused, or leave him and be deported and separated from your children. Luckily, the folks in Congress have provided an escape from this trap.

The Violence Against Women Act (VAWA) allows battered women (or men) who are married to U.S. citizens and permanent residents to use a special "self-petition" to apply for their green card.

That means you won't have to depend on your abusive husband for anything -- not the initial petition, not the signatures, not the promises of financial support, and not even his showing up at the interview. And, you can make use of this law and convert your application to a "self-petition" at any point in the process.

You'll want to get help with this. The self-petition involves not only filling out a form, but attaching documents proving a number of things. The most important of these have to do with your husband's citizenship status (though if he already sent in the initial "I-130" petition, this has been taken care of); your bona fide marriage; and the abuse you suffered. For information and referrals, call the National Domestic Violence Hotline, available 24 hours a day, at 1-800-799-SAFE begin_of_the_skype_highlighting              1-800-799-SAFE      end_of_the_skype_highlighting. They also have a website, at www.ndvh.org.

But just in case you have to flee your home in a hurry, think now about any personal documents or evidence you could take with you for your self-petition. Better yet, collect things now and leave them with a friend. For example, your passport and any immigration documents; photos of you with your husband, or of you with bruises and other signs of abuse; your journal, calendar, or other record of how your husband mistreated you and when; even threatening notes or answering machine tapes by your husband will all be very useful later. Ultimately you'll have to gather additional evidence, such as police reports and hospital records. Good luck.

How long will it be before my parents and brothers can immigrate here?

QUESTION:
 

I am originally from the Philippines and recently became a U.S. permanent resident. My parents and my brothers (who are unmarried and under age 21) would like to join me here. Can I petition for them to get green cards? Or, should I advise them to apply for visitor visas instead, and to return home to the Philippines afterward?

ANSWER:
 

Immigration law will not let you file for a green card for your parents or brothers now -- unless you become a U.S. citizen. Depending on how you got your green card, your eligibility for U.S. citizenship is three to five years away. (For more information, see Nolo's Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview.)

After you become a citizen, your parents become your "immediate relatives," in immigration law lingo. When you file visa petitions for them, they'll be eligible to immigrate right away. Your brothers won't be so lucky. When you become a citizen, you can file visa petitions for them, regardless of their age and whether or not they're married. But they'll become "Fourth Preference" relatives, and be put on a waiting list for a visa. The wait can be very long -- in fact, the Philippines holds the current world record with an approximate wait for brothers and sisters of 22 years.

A tourist visa, on the other hand, can be gotten in a few days. Being approved for one is not automatic -- your family members will have to prove that they aren't trying to get into the U.S. permanently and that they can support themselves once they're here. (Once you become a citizen and file visa petitions for them, proving their intent to return will become harder.)

But once they've got the visa, it will probably be good for many trips to the United States. On each visit, they'll be allowed to stay between three and six months. So, you might want to get that extra bedroom ready after all. Just make sure they leave on time during every one of their visits -- otherwise all manner of things could go wrong with their eventual hopes of immigrating. For more information on getting and using a tourist visa, see Student & Tourist Visas: How to Come to the U.S.