Family based immigration
What is family based immigration?
Family based immigration is the primary basis for legal immigration to the U.S. U.S. citizens and lawful permanent residents (green card holders) can sponsor certain family members for a visa that provides permanent residence (green card).
Who are certain family members who can benefit?
Immediate relatives and other family members.
Who are “immediate relatives”?
Immediate relatives include (1) spouses of U.S. citizens, (2) children of U.S. citizens (unmarried and under 21 including stepchildren), and (3) parents of U.S. citizens (the petitioning citizen must be 21 or older).
Who is considered a spouse?
A person may have a status of spouse only as a result of a valid marriage. Marriage is valid (1) if it was valid at the time it was performed, (2) if the parties are still married at the time the immigration process in completed, and (3) if the marriage was not entered into solely for immigration purposes. Each party must have been legally permitted to marry, and the marriage must be considered legal under the laws where the marriage was performed (including same-sex, common law, and “customary” marriages).
What if a spouse is already in the U.S. and entered/stayed illegally?
Certain waivers of the unauthorized entry or stay in the U.S. may be available that would allow the spouse to become a permanent resident.
Who are “other family members”?
Other family members include (1) unmarried adult (21 or older) and married (of any age) sons and daughters of U.S. citizens, (2) spouses of permanent residents, (3) unmarried (under 21) and unmarried adult (21 or older) sons and daughters of permanent residents, (4) and siblings of adult (21 or older) U.S. citizens.
Are immediate relatives and other family members are treated differently?
Yes. There is no limit on the number of immediate relatives that may immigrate. I.e., there is no “line” they need to wait in. Immediate relatives obtain green cards relatively painlessly and quickly. On the other hand, other family members, who are not immediate relatives, are subject to limitations on the number of visas available (by preference category and country of origin) and may have to wait months or years for their green cards. In addition, it depends on who petitions - U.S. citizens or permanent residents (the latter enjoy lower preference).
There are some specifics regarding spouses. A spouse who has been married to the U.S. citizen or permanent resident petitioning spouse for less than 2 years is granted “conditional” permanent residence for two years, and the spouse must take additional steps at the end of the conditional period to maintain permanent resident status. If the spouse and the U.S. citizen petitioning spouse together do not file a petition (Form I-751) to remove conditions on residence at the end of the 2-year period, the conditional permanent resident status terminates and the spouse is out of status and may be deportable.
Are there any other requirements?
Yes, family members must be eligible to obtain lawful permanent resident status in the U.S. or be eligible for a “waiver of inadmissibility.” It is recommended that an individual’s eligibility and admissibility be assessed thoroughly before any family-based visa petition is filed, to ensure that the foreign national family member ultimately may obtain permanent residence.
What is the process?
The sponsoring relative files an immigrant visa petition (Form I-130), with U.S. Citizenship and Immigration Services (Government) or the U.S. Consulate abroad unless an immediate relative or other family member is already in the U.S. (additional Form I-485 is required).
Is it free?
Unfortunately, no. The fee is $535 (I-130 Form).
Are there any hidden issues?
Yes. Issues may arise if, for instance, you are trying to petition for your spouse. You need to bring the evidence of the bona fides of your marriage. Another problematic situation would be if your marriage is entered into while the foreign national spouse is in removal proceedings. The married couple must submit extensive evidence to demonstrate that the marriage is, indeed, valid, in order to overcome a presumption of fraud. Criminal records may also affect the process.
What are other options?
A K-1 visa allows U.S. citizen to bring his/her foreign national fiancé(e) to the U.S. with the intention to marry in near future. The U.S. citizen fiancé(e) must file a petition with Government demonstrating that the parties have met in person within the past 2 years, have a good faith intention to marry, and are willing and legally able to marry within 90 days of the foreign national fiancé(e)’s arrival in the U.S.
In turn, K-3 and K-4 visas allow spouses and children of U.S. citizens to come and stay in the U.S. while they await completion of the permanent residence process.
Where can I find more information?
Here.
MVDG Law can help you to go through this process. If you need our help or would like us to evaluate your case, please contact us.