Family-sponsored Permanent Resident Status

Petition

The first step in the permanent residence process when a K-1, K-3, or V visa is not appropriate, is the filing of a “visa petition” (USCIS Form I-130) with evidence proving the family relationship. For example, to prove marriage a certified copy of the marriage certificate must be filed along with divorce decrees if there have been prior marriages. The American citizen or permanent resident sponsor must also prove legal status in the U.S. by submitting a birth certificate, U.S. passport, or green card. Spouse petitions are discussed further below.

For a parent petitioning for a child, the child’s birth certificate is usually sufficient proof of the relationship. When birth records are not available, secondary evidence can be submitted to verify the relationship including photos, affidavits from relatives, school and other records, or a DNA test.

Adjustment – or – immigrant visa

The next step in the process is to submit an application for “adjustment of status” to lawful permanent resident status. Alternatively, one may apply for an “immigrant visa” at an American consul overseas. Adjustment applications can only be filed if one is lawfully admitted to the U.S., and certain other criteria are established.

This part of the process involves proving that the foreign national is “admissible” to the U.S. and has adequate support, is not a criminal, has not committed immigration fraud, has no contagious diseases, and so forth.

The adjustment of status or immigrant visa process cannot begin until the filing date of the petition becomes current on the State Department’s Visa Bulletin at which time a visa number becomes available.

A visa number is required for:

• 1st family preference – unmarried adult children of U.S. citizens;
• 2nd family preference – spouses and unmarried children of green card holders;
• 3rd family preference – married children of U.S. citizens; and
• 4th family preference – siblings of U.S. citizens.

The Department of State visa bulletin is at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. As you can see from this list, the waiting times for a visa number are very long. The Visa Bulletin is updated about the 10th of each month.

“Immediate Relatives” – the parents, spouses, and minor children of U.S. citizens – are exempt from the visa number requirement, and can immigrate as soon as the visa petition and adjustment or immigrant visa can be processed.

These visa classifications are further discussed below.

Special rules for marriage cases

To sponsor a spouse, evidence must be submitted that the relationship between the husband and wife is a real one and not a sham solely for immigration purposes. Usually photos of the couple and other documents to prove they live together, such as financial records, an apartment lease, or automobile registration, are submitted.

Often, people ask what documents should be generated or gathered to prove their marriage is real. Individuals should not generate documents just for the USCIS, such as opening a joint checking account. It is important, however, to save pertinent documents that occur in the course of the couple’s life. While some new couples do not have a lot of paperwork to show cohabitation, most have photos taken together, evidence of travel and so forth, to prove their relationship is not for immigration purposes. It is important not to create phony documents or to exaggerate.

It is illegal to enter into a marriage solely for immigration purposes. The consequences for doing so include possible criminal fines and jail time. Section 204(c) of the Immigration Act also provides that a new petition cannot be submitted for a foreign national who has previously entered into a sham marriage solely for immigration purposes. In other words, if an individual enters into a sham marriage, applies for permanent resident status, divorces, then finds a real spouse and files a second immigration case, it will be denied because of the first phony marriage. Deportation proceedings may be brought when a foreign national is caught engaging in a fraudulent marriage.

If the marriage at its inception was real and the parties can prove that it was not a sham, separation may not prohibit the foreign national from becoming a permanent resident of the United States. There is a long line of cases and it is immigration policy, that the legal issue is whether the marriage is a real one at the inception of the marriage. If there is a divorce before immigration is completed, the application will be denied because the relationship has legally ended.

The USCIS, while often very inefficient, thoroughly analyzes marriage cases and more often than not can determine whether they are real. It is illegal, immoral, and unwise to engage in a sham marriage for immigration purposes.

Conditional residents

A foreign national married less than two years, at the time adjustment or status or when an immigrant visa is issued, is granted “conditional resident” status. One year and nine months later, an application to remove the conditional resident status must be submitted. This involves proving the couple is still together or a waiver must be obtained (based on entering the marriage in good faith and resulting in hardship or spouse abuse).

Warning – Do not come to America with a tourist visa intending to marry.

The USCIS is very serious about its rules. An individual must have the proper visa for the purpose of a trip to the U.S. A tourist visa (B-2) or admission under the visa waiver program (without visa) is for tourism. The USCIS says it is illegal for a person to come to America with a tourist visa for the purpose of marriage. A person who enters with a tourist visa and, for example, soon marries an American citizen and then applies for permanent resident status, can face very serious consequences. The USCIS can deny the application for permanent resident status and begin deportation proceedings against the foreign national for making false statements to the immigration airport inspector about his/her intention for coming to America with the B-2 tourist visa.

In this case, a fraud waiver must be submitted to the USCIS to forgive the individual for making fraudulent statements to the airport immigration inspector. In many cities (particularly in San Francisco) it is extremely difficult to obtain a fraud waiver. It must be proven that the American citizen or permanent resident family member of the foreign national will suffer “extreme” hardship if the foreign national is deported. The hardship is not that of the foreign national but of their American citizen or permanent resident relative. For a waiver, oftentimes it must be proven that the foreign national’s American or permanent resident family will suffer adverse medical consequences, if the foreign national is deported.

To avoid this problem and have the relative come sooner than waiting for an immediate relative immigrant visa, the K-1 or K-3 visa or admission with another temporary work visa, such as an H-1B (for a professional), may be appropriate.

Immediate relative – for spouses, minor children, and adult parents of a U.S. citizen over age 21

This classification permits an adult U.S. citizen to sponsor his/her spouse, minor children (under 21), or parents (provided the sponsor is over age 21) for permanent resident status. There are no numerical limits and no waiting for a visa number – only processing time to complete the case. The U.S. citizen petitions for their relative for this classification as described above in the family sponsored permanent resident petition and adjustment or immigrant visa sections.

First preference – unmarried children of U.S. citizens

This category permits U.S. citizen parents to sponsor their single adult children for permanent resident status. The petition filing date is the priority date. One cannot complete the case until a visa number is available on the Department of State visa list. Every month on the 10th or the 12th, the Department of State issues a new visa bulletin with the priority dates that are eligible for a visa number. Go to http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html for the Department of State’s visa bulletin. Scroll down to the family-based visa chart and you will find the current cutoff dates for all countries, including Mexico, Philippines, and China which have extra long backlogs.

It takes a number of years before a first preference case can be completed. When a parent naturalizes a second preference petition can be updated to a first preference and the old priority date used. Family-based second preference – 2A

A lawful permanent resident (green card holder) may petition for his/her spouse and children under age 21. The date of filing the visa petition becomes the priority date. The petition can be approved relatively promptly or it can remain pending for many years (often the USCIS waits for the priority date to almost be current before deciding the petition). In some cases this is an advantage (see discussion of Child Status Protection Act below).

After the visa petition is approved, one cannot immigrate until a visa number becomes available. Visa numbers are distributed based upon the filing date of the visa petition. See the First Preference discussion above for further information on the visa list which can be found at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

If the petitioner naturalizes, the petition can be upgraded to immediate relative (if the beneficiary is under age 21, which is exempt from a visa number) or the first preference category and keep the established priority date.

When an individual’s priority date is within 60 days of being current on the visa bulletin, one can then proceed to begin the process to apply for permanent resident status via “adjustment of status” if the individual is in the U.S. (and satisfies the criteria), or apply for an immigration visa at a Consul overseas.

If the child beneficiary marries, the visa petition is void and the priority date is lost, unless the parent has naturalized first.

Family-based second preference – 2B – unmarried children over 21

The only difference between this classification and a 2A is that this one is for children over age 21. If a child marries, one can only proceed under the family-based third preference and a new petition is required. The waiting time is generally longer for the 2B category than the 2A category. If a parent naturalizes, one can upgrade from the 2B category to the immediate relative (if child is under 21) or to the first preference and retain the 2B priority date.

Family-based third preference – married children of U.S. citizens

A married child of a U.S. citizen may immigrate under this classification. As with the family-based second preferences there are lengthy waiting times for a visa number. Family-based fourth preference – siblings of American citizens

Siblings of American citizens may immigrate under this classification. A petition filed today will probably take 15 or 20 years for a priority date to become current for a visa number so the individual and family (children must be under 21 at immigration) may immigrate to the U.S. Although the visa list is only backlogged about 10 years, it moves very slowly.

Filing a visa petition will also make it much more difficult for some foreign nationals to obtain most temporary visas to the U.S. Failure to disclose the filing of a permanent visa petition or a nonimmigrant visa application (DS-156) may be viewed as making a false statement to obtain a visa and may render the individual permanently inadmissible for fraud.

Violence Against Women Act (VAWA)

This unique statute allows both women and men to seek permanent resident status on their own petition if they can demonstrate that they were abused or subject to extreme cruelty by a U.S. citizen or lawful permanent resident spouse (or in the case of a child by its parent or stepparent). The VAWA application must be submitted to the USCIS during the marriage or within two years of its end. One may self-petition even if the U.S. citizen opposes the application. The USCIS is instructed to keep these applications confidential and will not tell the U.S. spouse/parent that the application has been filed. Credible evidence is needed to document the abuse or cruelty. Physical beatings are not necessary. Mental cruelty and verbal abuse may be sufficient in certain circumstances.

Stepchild

A parent may petition for their stepchildren provided the sponsor marries the stepchild’s parent before the unmarried stepchild turns 18. Divorce does not necessarily end the step relationship if the stepparent and the stepchild continue to have a relationship.

Stepchild cases can be complex. For example, a child born overseas was abandoned by her natural father. The mother remarried a man (also from overseas) who became the child’s stepfather. The mother then died and the stepfather married an American citizen and immigrated to the United States. He then wants to immigrate his stepchild. This would take many years under the family-based second preference, but could be accomplished much faster by a visa petition through his American citizen wife. The legal question is whether this child is the stepchild of the stepfather’s second wife. Since the child was under the age of 18 when the stepfather married his new wife, and the stepfather maintained a relationship with the child, the child is a stepchild of the new American wife. We assisted with this case and the USCIS granted the petition.

Because of the unique way in which the stepchild statute is written, a stepchild may immigrate to the United States, naturalize, and at age 21 petition to bring his or her blood parents to the United States as immediate relatives. Similarly, the child of an out of wedlock relationship becomes the stepchild of the spouse of the child’s parent, whether they knew of or condoned the relationship or not.

Adopted child

A child must be adopted while under the age of 16 and have resided with and be in the custody of the sponsoring parent for at least two years. The legal custody and living together may be before or after the adoption. Lawler & Lawler has assisted many people to expedite adoptions so that they may be completed before the child turns 16. Orphan

A United States citizen may petition for an orphan. An orphan is defined as a child who has no parents or whose parents are incapable of taking care of the child.

Child Status Protection Act – freezing children’s age under 21

In the past, upon marriage or reaching the age of 21, a child no longer qualified as an immediate relative or as a minor child for the second preference 2A category. Also, if a family or employment based prospective immigrant cannot complete their case before their child turns 21, the child would age out and not be permitted to immigrate with his/her parent.

The purpose of the Child Status Protection Act is to freeze the age of children under 21 so that they may immigrate with their parents. The statute is very complex and does not appear to benefit many individuals.

Here is a brief summary of some of the Act’s provisions. A U.S. citizen or permanent resident must file a petition while the child is under 21. The amount of time that the petition remains pending may be deducted from the child’s age and after the deduction, if the child is considered to be under 21, the child may then immigrate with his/her parents as though he/she is still under 21, provided they do so quickly. Similarly, if an employer files an I-140 for an employee with a child age 20, the child’s age is frozen and she may immigrate with the family even after she turns 21.

245(i) – illegal entry and illegal status

For many, section 245(i) of the Immigration Act is very important. It provides that a person who has worked illegally, overstayed their status provided they have a basis for a visa—i.e., labor certification or family petition. First, the foreign national visa applicant must have been in the U.S. on December 20, 2000. Second, a labor certification, employment-based, or family-based petition must have been filed for the foreign national (or in some cases, the person’s spouse, or for a minor, their parents) before April 30, 2001. Third, when the adjustment application is filed one must pay a $1,000 fee to the government to complete the immigration application.

We hope that the cut-off dates of section 245(i) will be extended. Currently, there does not appear to be much sentiment in Congress to extend 245(i). The President of Mexico, Vincente Fox, has been lobbying the White House for an extension, as have many immigrant rights groups. Everyone is encouraged to write their Congressional Representatives and Senators urging extension of this humanitarian statute.

Affidavit of support

Each family-based immigrant must have an affidavit of support submitted for them by the petitioning sponsor. This is a contract between the sponsor, foreign national, and the U.S. Government. Income requirements must be satisfied. In certain cases another person may submit an affidavit of support to supplement the petitioner’s income. If the beneficiary accepts public assistance, the petitioner will be sent the bill. Deriving citizenship

An individual may derive U.S. citizenship from his/her ancestor even if they were born abroad. The rules on deriving citizenship are very complex and are dependent upon the law in effect at the time the individual was born. Some families with many children born over a long period of time find that some of the children derive citizenship through their ancestor while others do not simply because the statute in effect at the time of their birth is different than the law in effect at the time their siblings were born. People with parents and grandparents who are U.S. citizens should explain their family history to us to determine if citizenship has been derived. Child less than two years old

A lawful permanent resident or American citizen who travels overseas and gives birth may have her overseas-born child registered as a lawful permanent resident upon returning to the United States provided it is the child’s first trip to the U.S. and the child is still under age two.

3- or 10-year bar

A person who either enters the U.S. illegally or comes on a temporary visa (except a J-1 or F-1) and overstays their I-94 end date by more than six months is barred from returning to the U.S. for three years. Overstaying more than one year results in a 10-year bar. This affects people who apply for adjustment of status and those who apply for an immigrant visa at a consul. For a waiver of this harsh statute, one must prove a U.S. citizen spouse, parent, or child will suffer extreme hardship. Marriage to a U.S. citizen may itself be insufficient for the USCIS to grant such a waiver.

Double illegal entry

A person who has entered the U.S. illegally (such as “jumping the line” from Mexico) after September 30, 1996, remains here more than one year, departs and returns illegally is barred from the U.S. for 10 years after which one must obtain a waiver. Marriage to a U.S. citizen cannot overcome this ground of inadmissibility until accruing 10 years out of the U.S.

Claim of being a U.S. citizen

A foreign national (or permanent resident) who claims to be a U.S. citizen is inadmissible and deportable from the U.S. There is no waiver. This may include statements on I-9 forms for employment (there may be a defense as the form asks whether the person is a citizen or “national” of the U.S.), a credit card application, apartment lease, home loan, or school application.

Crimes

Conviction of a crime or even commission of a crime without a conviction may render a foreign national inadmissible. Anyone contemplating immigration who has an arrest or conviction in or out of the U.S. should consult with an experienced immigration counsel. For more details, see the deportation defense section of this web page.