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Family-Based Immigration

Are you an immediate relative—a spouse, a minor child, an unmarried child or parent—of a U.S. citizen or green card holder?

Are you a married son or daughter (or a spouse or a minor child of theirs) of a U.S. citizen?

Are you a brother or sister (or a spouse or a minor child of theirs) of a U.S. citizen?

If you answered “Yes” to any of the questions above, this chapter might provide you with the information you need to get sponsored to reside permanently in the U.S.! Under the family-based immigration category a U.S. citizen or a green card holder may be eligible to sponsor his/her immediate relatives. Such relatives include a spouse, minor child, unmarried children, and parents. Also, under this category a U.S. citizen can sponsor married sons/daughters and siblings.

Current U.S. law allocates 480,000 green cards per year to numerically limited (i.e., including immediate relatives), family-based immigrants, with an established “floor” of 226,000 family-based preference immigrants. Through applying for the proper classification and following the steps outlined for that classification, you may be on your way to obtaining one of these green cards yourself!

BASICS OF A GREEN CARD AND WHAT IT MEANS TO HAVE ONE

A lawful permanent resident (also known as a green card holder) is a foreign citizen who has been allowed to permanently live and work in the U.S.. A requirement for U.S. citizenship is 136

having at least five years of continuous permanent residency status or three years if you have obtained your permanent residence through your U.S. citizen spouse. If you have a relative who is a citizen of the U.S. or a relative who is a lawful permanent resident, and you want to become a lawful permanent resident based on their status; there are many steps that you and your relative must go through.

Please note: In many, if not all cases, it would be wise to seek the legal counsel of an immigration law attorney, whose expertise will guide you through the often complicated steps required to obtain legal permanent residency in the U.S. (i.e., a green card). A note from the author can be found at the end of this chapter regarding the services his immigration law office can provide you, if such legal counsel is required or sought.

SPONSORING RELATIVES

A permanent resident can petition his or her spouse and unmarried children, regardless of their age. That is, a permanent resident of the U.S. can sponsor his wife and any unmarried children to come to the U.S.. Many people seeking to reunite their family think that they cannot apply for their children who are over the age of twenty-one. This is incorrect. Even if your son or daughter is over twenty-one (and he or she is single), or if your son or daughter has been divorced, you can sponsor him or her if you are a permanent resident of the U.S.. It is a good idea for a green card holder or a citizen to apply for his relatives as soon as possible. This is because it may take a very long time for unmarried sons or daughters to come to the U.S.. The Visa Bulletin published by the United States Department of States provides guidelines regarding the approximate time it takes for your relatives to come to the U.S.. To review the most recent copy of the Visa Bulletin, please visit www.travel.state.gov.

WHO IS ELIGIBLE TO SPONSOR?

To sponsor your immigration to the U.S., you have to meet the criteria below:

  •  You have to be a citizen or a lawful permanent resident of the U.S. and be able to show documents proving your status, such as a U.S. passport, Naturalization certificate, a birth certificate, or a green card;
  • You have to file an affidavit of support. You need to show that you can support your relative to be able to live at least 125% above the mandated poverty line.

If you are a U.S. Citizen, you may petition for the following (Note: you have to make sure you can provide proof of your relationships):

  1. Husband or wife;
  2. Unmarried sons or daughters under 21 years old;
  3. Unmarried sons or daughters of any age;
  4. Brothers or sisters, if you are at least 21 years old; or,
  5. Parents, if you are at least 21 years old.

If you are a lawful permanent resident, you may petition for the following (Note: you have to make sure you can provide proof of your relationships):

  1. Husband or wife; or,
  2. Unmarried sons or daughters of any age.

RESTRICTIONS FOR FOREIGN NATIONAL APPLICANTS

The U.S. immigration laws prohibit issuing of visas for certain applicants. Examples of applicants who will be refused visas are those with communicable diseases (for example, tuberculosis), have a dangerous physical or mental disorder, or are drug addicts, prostitutes, have committed serious criminal acts, are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals, have used illegal means to enter the U.S., or are ineligible for citizenship. These are just some of the examples of reasons that a visa will be denied. For more information on ineligibility, please contact an immigration lawyer’s office to determine if you or your relative falls into one of the categories.

USCIS FORMS TO CONSIDER

I-130: An I-130 petition must be filed if you wish to sponsor qualified family members, such as a spouse, parents, child or sibling who is residing outside the U.S.

I-130/I-485: In certain situations, an adjustment of status application, Form I-485, can be filed along with Form I-130, within the U.S., if the family member you wish to sponsor is in this country. If your family member is in the U.S. illegally then you should consider retaining an attorney.

K Visa: The K1 visa is filed for the fiancée of U.S. citizens, and the K3 Visa is filed for the spouses of U.S. citizens. K3 visas apply to individuals who are married to U.S. citizens and K1 visas apply to U.S. citizens who are engaged and intend to apply for a fiancée visa. 138

V Visa: Some beneficiaries of I-130 filed Dec 21, 2001, may be eligible for the V Visa. The recipient can qualify for a V visa in the United States, or he/she may be entitled to obtain a V visa from an overseas Consulate. V visa holders can work in the U.S. and may be available to travel to their home country, under certain circumstances.

Battered Spouse Waivers: This waiver is for any spouse seeking permanent residency in the U.S. because they have been battered, and the abusive sponsor is unwilling to cooperate in the immigration process.

I-751: This category applies to individuals who receive their green card from their U.S. Citizen or Permanent Resident spouses. If you are married for less than two years immigration will grant you a temporary green card, which will be valid for two years. 90 days before the expiration of your temporary green card, all temporary green card holders are required to file form I-751 with supporting documents, to qualify for a permanent green card to reside in the U.S.. Failure to file the I-751 application will result in the termination of your green card and can result in deportation (now known as “removal proceedings”) being instituted by the United States Immigration and Customs Enforcement. If the marriage has terminated or the sponsoring individual refuses to cooperate, you may also file for a waiver of the joint filing requirement. In such instances, you should definitely consider the services of an experienced immigration attorney.

GETTING A GREEN CARD UNDER THE FAMILY BASED IMMIGRATION CATEGORY

The first stage of getting a green card begins when the U.S. citizen relative files for a Petition for Alien Relative (I-130). Once the United States Citizenship and Immigration Service (USCIS) have received the application you will receive a receipt notice. After that, the USCIS will approve the application or deny it, or mail you a request for additional evidence. Therefore, it is very important that the I-130 petition filed by the relative (sponsor) must be properly submitted with proof of relationship to the foreign national relative (beneficiary) with supporting documents, such as birth certificates, marriage certificates, etc. The I-130 petition has to be filed by the sponsor in the U.S. at the USCIS office having jurisdiction over the sponsor’s place of residence in the United States (to find a USCIS office, go to https://egov.uscis.gov).

1. GETTING YOUR GREEN CARD IN THE UNITED STATES

If your relative is already in the U.S. legally, then in some cases you can simultaneously file for adjustment of status for permanent residence for your relative. The procedure begins by filling 139

out and sending in Form I-130, along with the I-485 “adjustment of status” packet. You should be extremely careful when you consider applying for adjustment of status. If you are out of status or illegal, there is a likelihood that your green card may be denied, and you may be placed in deportation (now known as Removal Proceedings). There are limited exceptions for spouses and children under twenty-one who are sponsored by U.S. Citizens. Please do not apply if you are illegal before consulting with a qualified immigration attorney.

Once the I-130 and adjustment of the status packet are submitted, if USCIS needs additional information, the USCIS will send you an RFE (Request for Further Evidence) asking for more evidence. Follow the instructions in the letter and provide the information it is seeking. The petition will not be processed until all of the information is received. Once you provide the USCIS with all the required information, in most cases you will be sent a notice to attend an interview at the local USCIS office having jurisdiction over your case.

2. GETTING YOUR GREEN CARD OUTSIDE THE UNITED STATES (VISA PROCESSING)

Petitions for immediate family members (for example, a spouse, or unmarried children under twenty-one) have immediate priority status, and may take approximately eight months to a year to get processed. For other relatives, it may take several years to obtain permanent U.S. residence.

Once the I-130 relative petition is approved, your foreign relative’s case will be first transferred to the National Visa Center, wherein you will be required to provide all the information about your relative(s) who intend to come to the U.S., as well as an affidavit of support from your end. The purpose of the affidavit of support for the Immigration Services is to ensure that you will be able to provide financial assistance to your relatives, once they come to the U.S.. Explaining the requirements for the affidavit of support is beyond the scope of this chapter, and therefore it is advisable that you consult a qualified immigration attorney. After the National Visa Center is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the United States Consulate having jurisdiction over your foreign relative’s residence abroad. After that, the Consulate will notify you or your relative for an interview for permanent residence accordingly. An immigrant visa is valid for six months from the date it is issued.

For immediate family members (husband, wife, mother, father, unmarried minor child) of U.S. citizens:

  1. Immediate relatives do not have to wait for a long time. A visa number will be issued right away when the petition is approved, the petition will be transferred to the National Visa Center, and then finally to the Consulate. The average time for processing cases for immediate relatives is approximately one year;
  2.  It is suggested that you get a medical exam and certain vaccinations before you go to the interview. Ask your local U.S. Consulate for the requirements.

For non-immediate relatives:

Non-immediate relatives are brothers and sisters of U.S. citizens, married sons and daughters of U.S. citizens, unmarried sons and daughters of permanent residents and U.S. citizens, and unmarried sons and daughters who are over the age of twenty-one of U.S. citizens and permanent residents. There is a limited yearly amount of immigrant visas issued to alien relatives. The Department of State has to determine if an immigrant visa is available. When an immigrant visa number becomes immediately available to you, it means that you can apply to have one of the immigrant visa numbers assigned to you. Check the status of a visa number in the Department of State’s Visa Bulletin (http://travel.state.gov/visa/bulletin/bulletin_1360.html).

Visas are processed in the order in which petitions are properly filed and accepted by the USCIS. A properly filed petition means that the request is fully completed, the fee is paid, and it is submitted with all appropriate supplemental documents.

HOW LONG WILL IT TAKE?

It may take several years for non-immediate relatives between the time the petition is approved until the time the visa number is given. Also, the State Department limits visa numbers for different countries. So, if your country has a long list of people waiting for immigrant visas, it will be a long delay before you get a visa number. You can check with the U.S. Department of State to get a report on the dates when the immigrant visas are available. Visit www.travel.state.gov or call at (202) 663-1225.

VISA NUMBER ISSUANCE PREFERENCE

The non-immediate relatives must wait for a visa to become available according to the following preferences:

  • First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older;
  • Second Preference: Spouses of lawful permanent residents, and the unmarried sons and daughters (regardless of age) of legal permanent residents and their children;
  • Third Preference: Married sons and daughters of U.S. citizens, their spouses, and their minor children;
  • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses, and their minor children.

DHAVE TO APPLY FOR AN IMMIGRANT VISA NUMBER?

No. When the petitioner is notified that your visa petition is approved USCIS will send the approved visa petition to the Department of State’s National Visa Center where it will stay until an immigrant visa number is available. You will be notified when the Center receives your approved petition and also when the visa number becomes available.

Only contact the National Visa Center if your address has changed or if there is a change in your personal situation that may affect your eligibility for the immigrant visa.

The address is:

The National Visa Center

32 Rochester Avenue
Portsmouth, New Hampshire 03801-2909

APPLYING FOR AN IMMIGRANT VISA

IF THE APPLICANT IS IN HIS/HER HOME COUNTRY:

If you are outside the U.S. when the immigrant visa number becomes available to you, you should go to the U.S. Consulate where you live to complete the processing. Schedule and make an immigrant visa interview, complete medical and fingerprint requirements, get your visa stamped, and wait for your green card.

IF THE APPLICANT IS ALREADY IN THE U.S. LEGALLY:

If you are in the U.S. already you may apply to change your status to a lawful permanent resident after a visa number becomes available for you.

Note from Author: Our immigration law offices in New York provide assistance, counsel, and legal services regarding the documentation requirements to obtain a green card or to change your status to a lawful permanent resident. We also assist individuals in preparing and submitting the paperwork. Additionally, we prepare individuals for any required interviews. Mr. Gehi, the author of this book, personally accompanies individuals for the interview before the United States Citizenship and Immigration Services. In such cases. Mr. Gehi has appeared with his clients for interviews before the INS in New York, New Jersey, Pennsylvania, and Connecticut, and has been highly successful in resolving complex family-based immigration cases. If you intend to have Mr. Gehi or his law firm represent you at the interview, we request you to contact the law firm accordingly.

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