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How To Successfully File A Petition On Behalf Of Your Spouse
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For many years, we have successfully assisted numerous individuals in filing immigrant petitions on behalf of their family members.
 
Today we are going to discuss the various issues that one has to consider when filing an immigrant petition on behalf of a spouse.
 
The law allows a lawful permanent resident (LPR) or a U.S. citizen to file a petition on behalf of his spouse. The petition filed by an LPR in behalf of his spouse belongs to the 2nd preference A family-based category while the petition filed by a U.S. citizen in behalf of his spouse belongs to the immediate relative category.
 
According to the visa bulletin issued by the U.S. Department of State for the month of October 2008, immigrant visa numbers for the 2nd preference A family-based category (Philippines) are available only for applicants whose priority date is earlier than the cut-off date of January 01, 2004. This means that if the case was just filed recently, it will take at least 5 years before the beneficiary of said petition could file an application to adjust to LPR status or an immigrant visa application.
 
For example: Pokwang, an LPR, married Pooh in Las Vegas. Should Pokwang decide to file a petition on behalf of Pooh today, will he be allowed to file an application to adjust to LPR status simultaneously with said petition? The answer is no. Pooh has to go back to the Philippines and wait for his priority to become current so he could file an immigrant visa application.
 
What would happen if Pooh decided to stay in the United States while waiting for his priority date to become current, will he be allowed to adjust to LPR status eventually? Again, the answer is generally no. Unless he is able to find a way to maintain lawful nonimmigrant status while waiting for the priority date of his case to become current, Pooh would become out-of-status upon expiration of the date indicated on his I-94. Generally, if you are out-of-status, you are no longer allowed to change your status from one nonimmigrant status to another nonimmigrant status. Further, you are no longer allowed to adjust to LPR status, unless, of course, there is a special law, i.e., 245(i), 245(k), amnesty, etc., that applies to your case.
 
In the case of a petition filed by a U.S. citizen on behalf of a spouse, since the beneficiary belongs to the immediate relative category, the immigrant visa number is readily available and the beneficiary could immediately file an application to adjust to LPR status. In addition, unlike in the case of the beneficiary in the 2nd preference A family-based category, an immediate relative beneficiary is generally allowed to adjust to LPR status even if he or she is already out-of-status or has failed to maintain lawful nonimmigrant status in the United States.
 

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