Frequently Asked Questions

I am a resident alien. Can I claim any treaty benefits?

Generally, you cannot claim tax treaty benefits as a resident alien. However, there are exceptions.

I Married a US Citizen but Worked Illegally, Can I Get a Marriage Green Card Visa and Work Permit?

Aliens married to US citizens but have worked illegally may nevertheless apply for a green card, adjustment of status and work authorization. However, the income earned from illegal employment cannot be counted to meet the I-864 Affidavit of Support obligation. Aliens who have worked illegally should apply for work authorization at the earliest possible time to minimize the duration of unauthorized employment

CCA-Does my child qualify for automatic citizenship under the CCA?

Under the Child Citizenship Act (CCA), your child will automatically acquire U.S. citizenship on the datethat all of the following requirements are satisfied:

• At least one parent is a U.S. citizen
• The child is under 18 years of age
• The child is admitted to the United States as an immigrant.

Child Citizenship Act     Child Citizenship Act FAQs 

USCIS Announces New Naturalization Test

Read More

Marriage Visas & K1/K3 Visa Holders - Legal Rights Of Victims Of Spousal Violence Or Abuse

The USCIS has issued a memorandum regarding the legal rights of K-1 and K-3 visa applicants and others married to U.S. citizens. This memorandum addresses the rights of those subject to family or domestic violence or abuse in the hands of their U.S. citizen spouses. It explains that victims of domestic abuse may be able to self-sponsor for a marriage green card by filing an I-360 (VAWA) Petition as a Special Immigrant. It also explains self-sponsorship for the I-751 Petition to Remove Conditions without the assistance of the abusive spouse as well as the availability of child support payments in the event of a separation. [marriage-visa-k1-k3-visa-domestic]

I am a nonresident alien with no dependents. I am working temporarily for a U.S. company. What return do I file?

You must file Form 1040NR if you are engaged in a trade or business in the United States, or have any other U.S. source income on which tax was not fully paid by the amount withheld. You can use Form 1040N R-EZ instead of Form 1040NR if you meet all 11 conditions listed under Form 1040NR-EZ in chapter 7.

I Entered Legally but My Visa Expired, Can I Apply for a Marriage Green Card Visa And EAD Card?

Most aliens who entered legally with a visa whose visas subsequently expired may still apply for a green card, adjustment of status and work authorization if married to a US citizen. However, it is important to consult an experienced immigration attorney to review the facts and circumstances of the entry, the type of entry visa, and to confirm that adjustment of status application is appropriate and approvable.

Citizens - Married to Illegal Aliens

Green Card/Permanent Residency Visa for Illegal Aliens Married to US Citizens Through Exceptional Hardship Waiver

US citizens married to illegal aliens (without papers) and those who entered the US without inspection (EWIs) face significant hurdles before they can obtain a visa or green card for their illegal alien spouse. In addition to meeting the requirements that all other applicants must obtain, these cases have additional filing requirements. The following are some options to be considered for illegal aliens married to US citizens.

Adjustment of Status Through Section 245i
245(I) permits those who previously filed a permanent residency or labor certification petition on or before April 30, 2001 to remain in the US and seek adjustment of status even if the previous green card application is not approved. Upon marriage to a US citizen, the affected illegal alien will submit an immediate relative petition as well as an I-485 adjustment of status application, pay a fine and proceed with the green card process while remaining in the US — [Section 245i overview]

I-601 US Citizen Spouse Hardship Waiver
Illegal aliens, EWIs, and those subject to the 3/10 year bars may apply for a green card if married to a US citizen through the hardship waiver process. The first step is to submit an I-130 immediate relative petition to a USCIS service center in the US. Upon approval and NVC processing, the alien would apply to complete the green card process at a consulate in his or her native country. As part of that application, the illegal alien will submit an I-601 request for a hardship waiver along with extensive documentation and evidence. The alien is not permitted to complete the process while in the US but must leave the country to do so.

The I-601 hardship waiver application requires the alien to prove that not permitting him to reenter the US will result in extreme hardship to his or her S citizen spouse. Extensive and detailed documentation is required to prove this equirement. Such evidence should include sworn statements from family members, friends and acquaintances, medical records, psychiatric/psychological records, school records, evidence of illness of family members, financial information and tax returns, letters from teachers, support letters from churches and community organizations, evidence of health and emotional problems that may result from the separation, and such other documentation. This waiver process may also be used for applications submitted by US citizen parents on behalf of their illegal child as well as applications by permanent residents on behalf of their illegal spouse or child. If approved, the green card application is granted and the alien is permitted to return to the US to assume permanent residency or green card status.

Due to the extensive nature of the documentation required for this process, it is important to consult an immigration attorney familiar with the law in this area. Our immigration attorneys are competent and can assist with questions or filing the application. A recent ruling by the [Administrative Appeals Office (AAO)] should also provide some guidance for reparing the I-601 hardship waiver application.

Please use our Contact Us form or call at 312 795-9110 to get more information

I came to the United States on June 30th of last year. I have an H-1 B Visa. What is my tax status, resident alien or nonresident alien? What tax return do I file?

You were a dual-status alien last year. As a general rule, because you were in the United States for 183 days or more, you have met the substantial presence test and you are taxed as a resident. However, for the part of the year that you were not present in the United States, you are a nonresident. File Form 1040. Print "Dual-Status Return" across the top. Attach a statement showing your U.S. source income for the part of the year you were a nonresident. You may use Form 1040NR as the statement. Print "Dual-Status Statement" across the top.

Can I Travel Outside the US While My Marriage Green Card Visa Is in Process?

Green card applicants who have applied for adjustment of status can only travel with permission from the USCIS. Aliens with pending adjustment of status applications must first apply for Advance Parole and may only travel upon approval of the application for advance parole. Such aliens must carry the approved Advance Parole application and present such upon re-entry. Those aliens on H-1B or H-4 visa status are not required to obtain advance parole. Such aliens may travel on the H visa. However, it is important to speak to an experience immigration attorney before traveling to ensure that current state of the law and that there are no special requirements that may apply to that alien.

Aliens who entered illegally and those that overstayed their visa may not qualify for advance parole and may not be permitted to return to the US after traveling abroad. Such aliens should consult an experienced immigration attorney before making any travel plans.

How long do I have to be physically present in the US in order to qualify for citizenship?

To qualify for citizenship, an applicant must not only be a U.S. permanent resident for the required time period, but must also demonstrate that he has maintained continuous U.S. residency for a certain period of time.  For those applying based on marriage to a U.S. citizen, the requirement is 3 years of continuous residence in the U.S.  Such applicants must also prove that they were physically present in the U.S. for at least half of that time (18 months).

For those applicants not applying based on marriage to a U.S. citizen, 5 years of continuous residence is required.  Such applicants must also be physically present in the U.S. for at least half that time (30 months). 

For all applicants, absences of six months or less from the U.S. do not break an applicant’s continuous residence.  However, absences that are six months or more may result in a break of the continuous residence. Once broken, an applicant must re-accrue continuous residence.

In some instances, an applicant who must take an extended trip outside of the U.S. may file an application to preserve residence for naturalization.  If approved, this permits a permanent resident to meet the continuous residence requirement even though he is not physically present in the U.S. for a prolonged period as required.

I-751 Removal of Conditions For Marriage Green Card Visa

Marriage Visas, Family Visas, Joint Removal of Conditions, Waivers, Effect of Divorce Or Separation on I-751 Applications

I-751 Removal Of Conditions Those who obtained a green card through a marital relationship less than 2 years old are granted conditional residency for two years. The green card issued typically has an expiration date of two years. Within 90 days of the expiration of the two year period, the couple and dependents who received green cards must file a petition with the USCIS for removal of the conditions. The application and supporting documentation are filed using Form I-751.

Upon approval, the alien is then granted complete permanent residency. The application to remove the condition must be filed jointly by the couple along with documents showing a joint life. In some instances, those divorced, separated or in the process of doing so may file and request a waiver of the joint filing requirement.

USCIS has issued several memoranda dealing with policies and procedures in different situations including joint filing, availability of waivers, divorced couples, separated couples as well as those in the military:

Delegation of Authority to USCIS Service Center Directors to Deny Petitions

In a January 30, 2006 Memorandum, the USCIS granted the Service Centers authority to deny an I-751 if satisfied that the marriage was entered into for the purpose of evading US immigration laws. The Service Center is also directed to forward any fraudulent petitions to the Office of Fraud Detection and National Security (FDNS). The Service Centers may also forward petitions to the local USCIS office for an interview if an interview is likely to be useful. Read Entire Memo

Effect of Divorce/Separation on I-751 Petition-Additional Clarification

USCIS NSC Flash #19-2005, Revised Revision to NSC Flash #6-2005.

With USCIS NSC Flash #19-2005 issued on April 11, 2005, the USCIS clarified its position on how to file an I-751 petition when the parties are divorced or separated. In a nutshell, divorced aliens may file a separate petition and request a waiver. Those aliens separated but not divorced or who have initiated divorce proceedings which is not completed, may submit a joint petition to remove conditions. This memorandum provides USCIS’ updated position on the effect of a divorce or separation on I-751 petitions. [i-751-condition-nscflash19-2005] NSC Flash #18-2005, Revision to NSC Flash #6-2005.

These memoranda had been previously issued by the USCIS and were superceded by NSC Flash #19-2005 above. They contain USCIS’ position on I-751 petitions by those divorced, separated or in the process of doing so prior to the final revision above. NSC Flash #18-2005 was issued on March 30, 2005 and NSC Flash #6-2005 was issued before that on December 27, 2004. [Read Entire Memo i-751-condition-nscflash18-2005    Read Entire Memo i-751-condition-nscflash6-2005]

I-751 Filing A Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage

On April 10, 2003, the USCIS issued a memorandum on whether a conditional resident can file a waiver of the joint petitioning requirement on Form I-751 after the commencement of divorce or annulment but prior to final termination of the marriage. This memo instructs that a waiver may not be filed by those whose marriages have not reached complete termination. Read entire memo i-751-waiver-joint-filing-41003

Extension of Green Card Status for Conditional Residents with Pending Form I-751. Petition to Remove Conditions on Residence

A December 2, 2003 memorandum provides an automatic extension of an alien’s conditional green card status once a properly filed I-751 is received by the USCIS. The extension lasts until the USCIS makes a determination on the I-751 petition. This memo also authorizes that such aliens be given evidence of lawful status in the form of a 12-month I-551 stamp or I-94 showing conditional green card status. Read Entire Memo i-751-extend-status-12203

Military Service-Removal of Conditional Resident Status if Spouse is Serving Abroad in the U.S. Armed Forces as Part of Operation Enduring Freedom

A January 7, 2002 memorandum provides guidance for USCIS in adjudicating I-751 petitions to remove conditional status on residence when the conditional resident is married to a member of the US armed forces serving abroad as part of Operation Enduring Freedom. Read Entire memo i-751-condition-military-10702

When is my Form 1040NR due?

If you are an employee and you receive wages subject to U.S. income tax withholding, you must generally file by the 15th day of the 4th month after your tax year ends. If you file for the 2007 calendar year, your return is due April 15, 2008. If you are not an employee who receives wages subject to U.S. income tax withholding, you must file by the 15th day of the 6th month after your tax year ends. For the 2007 calendar year, file your return by June 16, 2008.

Can I Apply for a Work Permit and Travel Document When I Submit My Marriage Green Card Application?

Yes, In fact our law firm routinely submits those at the same time for qualified applicants. You can submit an application for an EAD card as well as Advance Parole at the same time you submit the marriage green card application. It takes anywhere from 60 to 90 days to obtain USCIS approval for these.

I am in the US armed forces, are the requirements different for US citizenship?

The requirements for naturalization are different for those who served in the armed forces. A person can naturalize even though he is not a lawful U.S. permanent resident if he meets all of the other requirements: served honorably in the U.S. armed forces in times of war or other declared hostilities, and enlisted or was inducted while in the U.S.

My spouse is a nonresident alien. Does he need a social security number?

A social security number (SSN) must be furnished on returns, statements, and other tax-related documents. If your spouse does not have and is not eligible to get an SSN, he must apply for an individual taxpayer identification number (ITIN). If you are a U.S. citizen or resident and you choose to treat your nonresident spouse as a resident and file a joint tax return, your nonresident spouse needs an SSN or an ITIN. Alien spouses who are claimed as exemptions or dependents are also required to furnish an SSN or an ITIN.

What Should I Expect at the USCIS Interview for My Marriage Green Card Application?

Generally, the USCIS examiner’s goal is to determine whether the couple is in a good faith marriage and sharing a joint life. The USCIS examiner typically asks questions about day-to-day life of the couple; where and how they met; whether friends, relatives and coworkers are aware of the marriage and joint life; and whether or not they have visited friends and family members as a couple. Examiners also review documents from the couple such as leases, bills, photographs, bank statements, credit card statements, and insurance policies to determine whether the claim of a joint life is supported by the documentation provided by the couple. In some instances, the couple will be separated and quizzed separately on different aspects of their daily life, home and activities.

The examiner generally does not rely on one or two factors alone. Instead, they review all of the facts of the situation together to reach a judgment whether they believe that the couple share a joint life.

What is the requirement that I must show good moral character to be eligible for citizenship?

Good moral character is not specifically defined. However, it reflects character that measures up to the standards of the average citizen in a particular community in which the applicant resides. It does not require that the applicant be a person of the highest degree of morals.

Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years, or three years if married to a U.S. citizen, or one year for Armed Forces expedite) prior to filing for naturalization. The Service is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder. An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:

• has committed and been convicted of one or more crimes involving moral turpitude;
•  has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
• has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana;
• has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more; 
• has committed and been convicted of two or more gambling offenses;
• is or has earned his or her principle income from illegal gambling;
• is or has been involved in prostitution or commercialized vice;
• is or has been involved in smuggling illegal aliens into the United States; 
• is or has been a habitual drunkard;
• is practicing or has practiced polygamy;
• has willfully failed or refused to support dependents;
• has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.

An applicant must disclose all relevant facts to the Service, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.

I am a nonresident alien. Can I file a joint return with my spouse?

Generally, you cannot file as married filing jointly if either spouse was a nonresident alien at any time during the tax year. However, nonresident aliens married to U.S. citizens or residents can choose to be treated as U.S. residents and file joint returns.

Will I Get the Green Card on the Day of the USCIS Marriage Interview?

In some cases, the examiner will approve the petition at the time of the interview. In may cases however, the examiner may first need to get approval from a supervisor, request additional documentation, or conduct additional research before the application is approved. Petitions are sometimes approved on the day of the interview where all of the necessary information has been obtained by the USCIS, the interviewing agent has authority to issue the final approval and no additional documentation is required from the couple prior to the approval. Where additional documentation or material is requested, the alien should cooperate with the USCIS examiner to arrange a mutually convenient time to provide the documents and information expeditiously.