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U.S. IMMIGRATION SYSTEM | PERMANENT RESIDENCE | FAMILY BASED OVERVIEW OF FAMILY-BASED IMMIGRATIONIn some instances, it is possible for a foreign national to attain permanent residence based on a family relationship with a U.S. Citizen or, in some instances, a Permanent Residence. The most common family-based pathway to permanent residence is marriage to a U.S. Citizen, but there are other family relationships that can also result in the attainment of permanent residence. This article provides an overview of the various family relationships and filing considerations for gaining permanent residence based on the sponsorship of a family member. FAMILY RELATIONSHIPS: DEFINITIONS Not all family relationships will confer immigration benefits to a foreign national. Rather, U.S. immigration laws have very specific definitions in the context of family relationships. Spouse (Husband/Wife) A spouse is a legally wedded husband or wife. Merely living together does not qualify a marriage for immigration. Common-law spouses may qualify as spouses for immigration, but only if the laws of the country where the common-law marriage occurs recognizes common-law marriages and grants them all the same rights and obligations as a traditional marriage. In cases of polygamy, only the first spouse may qualify as a spouse for immigration. In order to obtain permanent residence based on a petition filed by a spouse, the foreign national must demonstrate that he or she did not get married solely for the purposes of obtaining an immigration benefit. If either spouse was previously married, both parties must be able to demonstrate that the prior marriages ended in divorce or death. Neither party can be married to any other individuals when filing a spouse-based petition. The United States Citizenship and Immigration Services (USCIS) will not recognize a marriage as bona fide or “real” if the foreign national got married simply for immigration purposes. If USCIS suspects fraud or misrepresentation, this may significantly affect the chances of a foreign national obtaining permanent residence. Parent/Child The parent/child relationship must be demonstrated when a child files for a parent or a parent files for a child. Mother An individual is considered the son or daughter of his or her natural mother, regardless of whether the mother and father were ever married. The only exception applies to adopted children whose biological mother no longer has legal relationship with them upon completion of the adoption process. Father An individual is considered the son or daughter of a natural father, if one of the following conditions is met:
* To claim a father/child relationship, the father is not required to have legally recognized the relationship with child as long as the father can demonstrate an act of concern for the child’s support, instructions, and general welfare. Step Relationships U.S. immigration laws recognize a stepparent/stepchild relationship if the stepchild is less than 18 years old at the time of the marriage between the natural parent and stepparent. Adopted Child A child adopted before 16 years of age, who has lived in the same household with and has been in the legal custody of his or her adopted parent for two years is considered a child of that parent by USCIS. In the case of “customary” adoptions, USCIS will review the law of the country where the adoption took place to determine whether the adopted child has rights equal to those of a child who has been adopted formally. This is a very complicated area of law that requires a full discussion with legal counsel prior to filing a petition for an adopted child. Orphans A U.S. Citizen may petition for an orphan child if the following conditions are met:
To petition for an orphan, the petitioner must be a U.S. Citizen, married, and over 21 years of age. Adoptive parents must have adopted the orphan abroad, or have the intention to adopt the orphan once in the United States. This area of law overlaps with our firm’s discussion of U.S. Citizenship, and again merits a full discussion with legal counsel to determine the specific facts of a particular case. Brother/Sister To establish a sibling relationship, the foreign national must prove one parent in common under the rules for parent/child relationship. A U.S. Citizen must be over 21 years old to petition for a brother or sister. BASIC STEPS: FILING AN IMMIGRANT VISA PETITION FOR ALIEN RELATIVE (FORM I-130)
** Please note that in a 2/8/07 Interoffice Memorandum, Michael Aytes, Associate Director, Domestic Operations, USCIS, issued guidance on the adjudication of family-based immigrant visa petitions and Form I-129F Petition for Alien Fiancé (e) under the Adam Walsh Child Protection and Safety Act of 2006. Per this new federal law, the Department of State is precluded from accepting I-130 Petitions at consulates abroad. However, U.S. Citizens who live abroad may continue to file new petitions with a nearby USCIS international office. Petitioners traveling overseas who live in the United States must file their I-130 petitions with the appropriate USCIS Service Center in the United States. ELIGIBILITYIn order for the anchoring relative to sponsor a foreign national, he or she must meet the following criteria:
***The anchoring relative must be 18 years of age and have a domicile in the U.S. before he or she can sign the Affidavit of Support, Form I-864. This form is required for an immigrant visa for spouses and other relatives of U.S. sponsors. Foreign nationals who qualify for immigrant visa sponsorship vary depending upon whether the petitioner is a U.S. Citizen or a Lawful Permanent Resident.
In all cases, the petitioner must be able to provide proof of the relationship. PREFERENCE CATEGORIESIf a foreign national wishes to immigrate as a relative of a U.S. Citizen or Lawful Permanent Resident, he or she must obtain an immigrant visa number based on the preference category under which he or she qualifies. Foreign Nationals who want to become immigrants are classified into categories based on a preference system. The immediate relatives of U.S. Citizens, who include parents, spouses, and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by USCIS. These foreign nationals have an immigrant visa immediately available to them. However, foreign nationals in the remaining categories are subject to the quota and therefore must have available an immigrant visa number in their Preference Classification:
GOVERNMENT PROCEDURE: ONCE THE PETITION HAS BEEN FILED Once USCIS receives the anchoring relative’s immigrant visa petition (Form I-130, Petition for Alien Relative), it will be approved or denied. USCIS notifies the petitioner when a petition is approved or denied. If the foreign national is an immediate relative, he or she will be able to then file the Adjustment of Status Application with USCIS or Application for Immigrant Visa with the Department of State abroad. Please see our discussions regarding the One-Step Adjustment Process and Immigrant Visa Process below. If the foreign national qualifies in one of the four aforementioned preference categories, USCIS will send the approved visa petition to the Department of State's National Visa Center, where it will remain until an immigrant visa number is available. The Center will notify the foreign national when the visa petition is received and again when an immigrant visa number is available. The foreign national does not need to contact the National Visa Center, unless he or she changes addresses or there is a change in his or her personal situation, or that of the petitioner, which may affect eligibility for an immigrant visa, such as reaching age 21, marriage, divorce, or death of a spouse. ONE-STEP ADJUSTMENT OF STATUS APPLICATION: IMMEDIATE RELATIVES Again, the immediate relatives of U.S. Citizens, who include parents, spouses, and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by USCIS. These foreign nationals have an immigrant visa immediately available to them. If the foreign national is present in the United States, he or she is eligible to file the Adjustment of Status Application with USCIS concurrently with the Form I-130 Petition for Alien Relative. Adjustment of status is screening for admission as a Permanent Resident by the USCIS in the United States. PROCESSThe adjustment process involves investigation of an individual's identity, health, criminal background, and ability to support himself or herself in the United States. Family-based adjustment applications are filed at the local USCIS District Office. Which USCIS Service Center or District Office has jurisdiction is determined by the adjustment applicant's residential address. Interviews will be required for adjustment applicants who are married to U.S. Citizens or who have failed to maintain legal non-immigrant status. From filing to the time of the in-person adjustment interview or approval takes 12 to 18 months. TRAVEL RESTRICTIONSOther than an "H-1B" or "L" visa holder, a person who has filed an adjustment application cannot leave the United States without the USCIS' permission before the application is decided, or the application is effectively canceled. "Advance Parole" is USCIS permission to leave the United States during the pendency of an adjustment application for emergent personal or business reasons. An Advance Parole application is made on Form I-131 with three photos, $170.00 additional fee and documentation of need to travel. I-131 applications are adjudicated in approximately 60-90 days. Advance Parole is usually valid for multiple trips over one year's time. CAUTION: If a foreign national has ever been out of status, he or she may be barred from returning to the United States - even he or she has an approved Advance Parole document. In this case, the foreign national should carefully consult with us before filing for Advance Parole and before leaving the United States. RESULTAt the end of the Adjustment of Status interview and approval has been indicated, the adjustment applicant may obtain a stamp in his/her passport saying "Processed for I-551. Temporary evidence of lawful admission for permanent residence... employment authorized." This stamp indicates Permanent Resident status and is the equivalent of a green card. The stamp is usually valid for one year and confers all the benefits of Permanent Resident status, including unlimited work authorization and travel flexibility. During the validity of this stamp, the USCIS manufactures and mails a "green card" to the beneficiary. CONDITIONAL RESIDENCE If a foreign national obtains his or her permanent residence based on a marriage that is less than two-years old at the time he or she becomes an immigrant, he or she is considered a Conditional Permanent Resident. Conditional permanent residence grants a foreign national a temporary green card that expires in two years. Within 90 days of the two-year anniversary of obtaining conditional residence, the foreign national and anchoring petitioner spouse are required to file a Joint Petition to Remove Conditions on Residence. (Form I-751). Once the conditions are removed, the foreign national officially has Lawful Permanent Residence. If a foreign national obtains his or her permanent residence based on a marriage that is over two-years old, no additional petition is required. If a foreign national obtains a divorce before the removal of conditions petition has been filed, he or she is required to file a waiver of the joint petition (Form I-751). For USCIS to remove conditions without the cooperation of the spouse, the foreign national must demonstrate one of the following:
VIOLENCE AGAINST WOMEN ACT (VAWA) SELF-PETITIONS: ABUSED SPOUSE OR CHILD If a foreign national or child has been abused by a U.S. Citizen or Permanent Resident, he or she may be able to self-petition for permanent residence. This means the foreign national would not require the spouse’s help. In order to qualify to self-petition (Form I-360), the foreign national or child must have either been battered or subjected to extreme cruelty by the spouse. The foreign national must be living in the United States, and at some time must have lived with the spouse. Abuse must have occurred sometime during the marriage. The foreign national must also be married to the spouse (or the spouse must be deceased) upon filing the self-petition. The foreign national is required to demonstrate that he or she will suffer extreme hardship if removed from the United States. An abused child of U.S. Citizen or Permanent Resident parents may also self-petition. To prove the foreign national is an abused spouse, child, or parent of an abused child, the following documentation should be collected: Proof of abused, such as records of having called the police, a family court protection order, letter from a psychiatrist, psychologist, or social worker who was of assistance. Because USCIS has a strict standard for “extreme hardship,” please contact our firm prior to filing a self-petition based on abuse. SPOUSE AND FIANCÉ (E) OF AN AMERICAN CITIZEN: IMMIGRANT VISA PROCESSING (IR1 & CR1) & NONIMMIGRANT VISA PROCESSING ABROAD (K-1 & K-3)IMMIGRANT VISA (IR1 & CR1) & K-3 VISAS A U.S. Citizen has two ways to bring his or her foreign spouse to the United States to live if the foreign national currently lives overseas. Immigrant Visa for a Spouse of a U.S. Citizen (IR1 or CR1) An Immigrant Petition for Alien Relative, Form I-130 is required. The first step is to file a Petition for Alien Relative, Form I-130 for the U.S. citizen’s spouse (husband or wife) to immigrate to the United States. The petition is filed with USCIS in the United States that serves the area where the petitioner lives. Some additional basic information regarding the immigrant visa is as follows: Once the USCIS approves the Form I-130, the petition is sent to the NVC (National Visa Center). NVC then forwards the petition to the U.S. Consulate where the marriage occurred or to the consulate where the foreign national is a citizen. This consulate will subsequently interview the foreign national in person prior to the issuance of the immigrant visa. NVC will assign the foreign national a case number. Additionally, this agency is in charge of sending the following documentation to the foreign national and petitioner in conjunction with the immigrant visa process:
If the petitioner originally filed a petition for his or her spouse as a Lawful Permanent Resident (LPR), and now is a U.S. Citizen, there is a procedure to upgrade the petition from Family Second Preference (f2) to Immediate Relative (IR). The petitioner can do so by sending proof of citizenship to the NVC. Nonimmigrant Visa for Spouse (K-3) Generally, this application applies to a petitioner and foreign national who marry overseas, where the marriage is also legally registered with the foreign government. The application for the nonimmigrant visa for the foreign national (K-3) who married a U.S. Citizen must be filed and the visa must be issued in the country where the marriage took place. After the visa process has been completed, and the visa is issued, the spouse can travel to the United States to apply for Lawful Permanent Residence with USCIS. Some basic information regarding the K-3 visa is as follows:
K-1 VISAS A U.S. Citizen may also bring his or her fiancé (e) to the United States to marry and live. In order to file, the petitioner and foreign national must have met in person within the past two (2) years. In this case, the foreign national needs to apply for a nonimmigrant visa for fiancé (e) (K-1) in order to travel to the United States for marriage. Specifically, the Form I-129F fiancé (e) petition is required and is filed with USCIS in the United States. Minor children may accompany the foreign national on a K-2 visa. Some basic information regarding the K-1 visa is as follows:
For more in-depth information about immigrant-visa processing or K-1 or K-3 visas, please contact our firm to discuss your case in detail. |
Aronson & Associates, P.A. |