One of the most frequent questions we receive at Fried, relates
to the following legal situation: A Romanian citizen enters the
U.S. with a visitor's visa; the visitor's visa expires; the Romanian
citizen remains in the U.S. past the date of visa expiration;
the Romanian citizen marries a US citizen, and now the Romanian
citizen wishes to obtain a green card based upon this marriage.
WHERE SHOULD THE GREEN CARD APPLICATION BE FILED ???
The application for a green card can be filed in the United
States or overseas. Each course of action has its own benefits
and risks. If it is filed overseas and it is granted, the application
generally takes less time than it does in the United States, and
the person enters the US with a green card in their possession.
If it is filed in the US, it takes longer to obtain the green
card, but the alien can obtain a valid work authorization within
3-4 months.
It would seem, then, that it would be best to file overseas.
However, an important word of caution regarding filing overseas:
If the alien overstayed the date of his visa expiration by 6 months
or more but less than 1 year and he departs from the United States,
the alien will be ineligible to return to the United States for
a period of 3 years. If the same person remained in the United
States without authorization for 1 year or more, he is barred
from re-entering the U.S. for a period of 10 years. It is to be
noted that the 3 or 10 year bar only applies to those aliens who
have stayed in the United States beyond the expiration of their
visa and then leave the United States. As long as they are physically
in the United States, the 3 or 10 year bar does not come into
play, regardless of how long they overstayed their visa.
This bar to reentry is in effect even if the Romanian citizen
and his U.S. citizen spouse have one or more children born in
the United States (and who therefore are citizens of the United
States). The only recourse that the Romanian citizen would have
if he faces the bar of re-entry is to file a waiver petition,
through the American Embassy in Bucharest, Romania, with the I.N.S.
(Such cases are generally handled by the American Embassy in Vienna,
Austria but must be filed as set out above.) The waiver cases
are difficult to win and the alien would have to prove that it
would be an "extreme hardship" for his U.S. citizen spouse and
children, if any, for him not to reside in the U.S. Merely stating
that the U.S. citizen spouse and child would miss the alien's
company is insufficient to establish extreme hardship to the U.S.
citizen family member. Factors such as the health of the U.S.
family member(s), the financial situation of the U.S. family member(s)
and similar issues must be raised in order to succeed in this
type of case. It is a great risk to assume that one can overcome
the high standard of proof required for a waiver case.
Moreover, the U.S. Consulate in Bucharest no longer allows U.S.
citizens to appear with their Romania citizen spouse and file
their immigration documents, as was the practice in the past.
Rather, with rare exceptions, the U.S. Consulate officials directs
the U.S. citizen to file the Romanian citizen/spouse's immigration
documents with the I.N.S. in the United States and then have the
I.N.S. send the approval notice to the U.S. Consulate for the
Romanian citizen's "Green Card" processing. This procedure can
last between 6-10 months.
Filing the Green Card application in New York City lasts between
16-18 months. (Prior to the September 11 terrorist attacks, this
period was approximately 12 months. In other jurisdictions, such
as Newark, NJ and Hartford, CT, this process currently lasts 6-8
months.) Yet, while waiting for the Adjustment of Status interview,
the Romanian citizen spouse will obtain a work authorization (approximately
3-4 months after filing the petition) and most importantly, will
not be subject to the 3 or 10 year bar, for the simple reason
that he has not physically left the United States.
We at Popescu, Iosepovici & Associates recommend that wherever possible,
a Romanian citizen file his/her Green Card application based on
a marriage to a U.S. citizen in the United States. We believe
that the relatively long term which the process takes to complete
(in places such as New York City), is far less problematic than
the possibility that the Romanian citizen may face a 3 or 10 year
bar to re-enter the United States if he attempts to obtain the
Green Card in Bucharest. Of course, each case must be evaluated
on its own facts and merits and a decision arrived at with the
interests of the particular applicant in mind, but generally speaking,
it is much safer to accept the longer waiting period and file
in the United States then to risk leaving the United States and,
if something goes wrong, to be unable to return.
We hope this information will be of use. As always, all of us
at Popescu, Iosepovici & Associates will continue to inform the Romanian
public about the latest laws and issues relevant to our community.
Armand Fried, Zamir Iosepovici & Robert Popescu
