“My brother filed a visa petition for me. Is there a way to speed up the process of obtain a green card?” A Boston immigration lawyer responds

Boston deportation defense lawyer

In a recent immigration consultation, I faced the following situation:

A young man entered the United States on a visitor visa and then fell out of status after overstaying. His brother gained U.S. citizenship and then filed an immigrant visa petition, Form I-130, on his behalf. The young man suffered from serious health issues, which were covered by MassHealth. So, with these facts, the family asked me whether there was some way to expedite the process of getting a green card for the young man.

In my view, this young man will face at least three major issues when seeking a green card.

First, according to the Department of State's most recent Visa Bulletin, an immigration petition filed on behalf a brother or sister is not likely to become current for a long time--10 years or more! And in the meantime, this young man, as the beneficiary of this petition, couldn't obtain a work permit or social security card. Since he is out of status, he could be put in deportation proceedings. An Immigration Judge could order him to be deported and his pending visa petition wouldn't protect him from being deported. And, regardless of this person's medical condition or other compelling equities, I'm not aware of any way to expedite this sort of case. The time frame is what it is. You are bound by the cruel reality of the visa bulletin. In immigration law, as in many other areas of life, no short cuts exist.

Second, since this person is out of status, he has accrued unlawful presence. Therefore, even if he were properly admitted and inspected into the U.S., he would be inadmissible and, thus, wouldn't be able to obtain a green card within the U.S. One exception to this ground of inadmissibility would be for what is called 245(i) cases. But 245(i) requires that the visa petition be filed on or before April 30, 2001.

Third, once the priority date for this visa petition becomes current, since this person can't obtain a green card through adjustment of status, he would have to consular process, i.e, seek an immigrant visa at a U.S. consulate abroad. But if he were to leave the U.S., his unlawful presence would render him inadmissible and, therefore, result in the denial of his immigrant visa application. To cure the inadmissibility, he would need an immigration waiver, Form I-601. To qualify, he would have to have a U.S. citizen anchor relative and show that his U.S. citizen immediate relative would suffer "extreme hardship" if he weren't allowed to return back to the U.S.  Of course, successful waivers are challenging to prepare.

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