Ask Anjana: Dreamer Newlyweds, Travel Permits, and Foreign Assets


An Immigration Attorney Answers Your Questions

Jul 9, 2018



Anjana Prasad, Esq. Senior Advisor, Immigration LawAsk Anjana
is an advice column written by immigration attorney Anjana Prasad. Anjana came to the United States as an international student from Bangalore, India, in 1998. Today she is a U.S. citizen with over a decade of experience counseling families on how to successfully navigate the U.S. immigration system.

If you’d like to submit a question to Ask Anjana, please send an email to ask.anjana@boundless.com. All submissions will be kept confidential.


Dear Anjana,

In what situations can DACA recipients apply for a green card through marriage?

Newlywed Dreamer


Dear Newlywed Dreamer,

Congratulations on your recent wedding! Many Dreamers are in the same situation as you and are wondering if they, too, might be eligible for a green card through marriage.

To answer your question, there are multiple situations in which spouses with DACA (Deferred Action for Childhood Arrivals) may apply for marriage-based green cards. But the process will be tougher for some than for others. It generally boils down to three key factors:

1. Whether you’re married to a U.S. citizen or green card holder (permanent resident)

2. Whether you originally entered the United States legally or illegally (and if the latter, how many times?)

3. When you applied for DACA

Generally, if you are married to a U.S. citizen, you first entered the United States with a valid visa (or through the Visa Waiver Program), and then you overstayed, you should be able to apply for a marriage-based green card as if you had legal immigration status in the United States.

Things get much trickier if you entered the United States illegally.

If you’re fortunate enough to already have a travel permit, and you’re married to a U.S. citizen, you may be able to leave the United States for a short period of time, return legally, and then apply for a green card from within the United States without any special issues.

But most DACA recipients who entered the United States illegally don’t have a travel permit, in which case the only way to get a green card based on marriage — to a U.S. citizen or a green card holder (permanent resident) — is to return to your country of origin and apply through a U.S. embassy or consulate. That’s not a huge obstacle if you applied for DACA before or within 180 days after turning 18 — you’d be in the same shoes as any spouse applying for a green card from abroad. But if you applied for DACA after 180 days of turning 18, you must apply for a special waiver (Form I-601A) or you could be barred from returning to the United States for 3–10 years. And if you have entered the United States illegally more than once, then if you leave now you may be permanently barred from returning.

The other important thing to keep in mind is the waiting time: If you’re eligible for a green card and you’re married to a U.S. citizen, the whole process takes about 7–10 months. But if you’re married to a current green card holder (permanent resident), it could be 23–32 months until you get your own green card.

Read the full details in our guide to DACA Recipients and Marriage Green Cards. And know that Boundless can help most DACA recipients who are married to U.S. citizens and entered the United States with a valid visa.

Best of luck!

Anjana


Dear Anjana,

Does the new 90-day rule apply to “adjustment of status” cases?

Green Card Hopeful


Dear Green Card Hopeful,

It’s not uncommon for temporary visitors in the United States to change their original plans — if they fall in love with a U.S. citizen or permanent resident, for example. But before you rush to file your green card application, here’s what you should know:

Filing an “Adjustment of Status” application (Form I-485) within 90 days of arriving in the United States on a temporary visa — such as B, F, and J visas — is indeed among the violations subject to the 90-day rule implemented in September 2017.

In other words, if you apply for a green card (permanent residence) while physically present in the United States during your first 90 days here, the U.S. government will presume that you “willfully misrepresented” your intentions for coming — that is, that you originally had no intention of returning to your home country before your temporary visa expired.

You may still be able to convince the U.S. government that you intended to honor the terms of your visa, however, but you’ll be facing an uphill battle. To disprove “willful misrepresentation” on your part, you’ll need to submit compelling evidence to the contrary. Suppose, for instance, that you intended to visit your spouse in the United States for a couple of months, but your spouse fell seriously ill. You’ll need to explain at your green card interview that this is why you decided to stay in the United States. Otherwise, your green card application may be denied, or your temporary visa may be revoked.

The best way to avoid triggering the 90-day rule, of course, is to wait until after 90 days have passed since you arrived as a temporary visitor in the United States before applying to “adjust your status” to permanent residence. But waiting doesn’t guarantee success. Check out this detailed guide to visiting your spouse in the United States.

With Boundless, an independent immigration attorney can answer all of your questions in much more detail, including those about adjustment of status rules.

Best,

Anjana


Dear Anjana,

Can my spouse and I use foreign assets to meet the green card income requirements?

Happily Married


Dear Happily Married,

First of all, congratulations!

You’re asking a good question, and you’re not alone — completing Form I-864 (officially called the “Affidavit of Support”) is a requirement on every green card application.

The short answer to your question is … yes and no. Before you include any assets on Form I-864, make sure that you don’t have enough income from employment to satisfy the minimum financial sponsorship requirement for your household size. For most marriage green card sponsors (the spouses who are U.S. citizens or green card holders), that minimum is 125% of the U.S. Federal Poverty Guidelines.

Only if you cannot meet that minimum income requirement should you then consider using your household’s assets. As for whether you can use foreign assets: If you’re the sponsor, you may include only U.S.-based assets, such as savings and stocks, as well as your home or secondary vehicle. The official I-864 guidelines state, however, that green card applicants may include their assets no matter where they live, whether in the United States or abroad.

But that’s not all you need to know. There are additional constraints on using foreign assets as proof of financial support:

1. The assets must be “liquid” (that is, convertible into cash within one year).

2. It must be possible to move the assets from the country where they are located to the United States — and only up to the value of each asset allowed by the green card applicant’s home country.

3. The total of your assets must equal at least five times the difference between the sponsor’s income and the applicable poverty guidelines. If, for instance, that shortfall is $5,000, you’ll need to include on your I-864 at least $25,000 worth of assets.

As long as you meet the above conditions, you should be able to use the green card applicant’s assets that are outside the United States.

For more details, check out our full guide to the Marriage Visa Income Requirements. Boundless can help you make sure your affidavit of support form (I-864) is properly and accurately completed, along with all the other required government forms for your green card application.

Best wishes!

Anjana


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