We take great joy in bringing families together by assisting our clients to obtain marriage, fiancé, parent and child visas to enter, or adjust their immigration status in, the United States. Under the INA, there are two basic types of immediate relatives and preference-category immigrants who can immigrate to the United States as relatives of American citizens.
Immediate Relatives
Immediate relatives under INA 201(b)(2)(A)(i) include the following:
- Spouses of American citizens
- Minor, unmarried children (under twenty-one) of American citizens
Parents of American citizens, provided that the citizen petitioner is at least twenty-one years old;
Spouses of deceased American citizens who were married for at least for two years at the time of their spouses’ deaths are eligible for immigrant visas, provided the couple was not legally separated at the time of death and the alien spouse files an immediate relative petition under INA 204(a)(1)(A) within two years of the death of the spouse. In addition, the alien must not remarry.
There are no derivative beneficiaries of immediate relatives. Therefore, a petition must be filed for each alien for whom classification as an immediate relative is sought.
The family-preference categories are enumerated at INA 203(a):
First preference includes unmarried sons or daughters of American citizens (twenty-one years or older);
Second preference includes spouses and children of lawful, permanent residents as well as unmarried sons and daughters of lawful, permanent residents;
Third preference includes married sons and daughters of American citizens; and
Fourth preference includes brothers and sisters of American citizens, if such citizens are at least twenty-one years old.
Unlike immediate relatives, the spouse or child of the principal alien under the family-sponsored preferences (derivative beneficiaries) is entitled to the same status and order of consideration, if he accompanies or joins at a later time the spouse or parent. Subject to the worldwide quota for family-sponsored immigrants, INA’s provisions specify the number of immigrant visas to be allotted to each of the family-preference categories. The Department of State’s monthly Visa Bulletin serves as an excellent reference for this complex allocation system.
Legal Terms Used In Processing Family-based Immigrant Petitions
Please see our glossary for the definitions of the terms used in the processing of family-based immigrant petitions. The terms that are particularly important include: petitioner, beneficiary, derivative beneficiary, quota chargeability and priority date. The relationships that serve as the basis for family-based immigrant petitions are described below.
Definition of Familial Relationships
Determining the correct relationship for family-based immigrants is very important. The INA has definitions to determine who is a “spouse,” “child,” “parent,” “son,” “daughter,” “brother” or “sister”.
Even though a person is married, it does not necessarily mean that he is a “spouse” under the INA. The marriage must have been valid at the time it was performed, which means that any antecedent divorces must have been lawful as well. Also, the marriage ceremony must be recognized as legal in the place where it is performed, and each party legally able to marry. Further, the marriage must still be in existence and not have been entered for immigration purposes.
Under INA 101(b)(1), a “child” means an unmarried person under the age of twenty-one who can be:
a ”legitimate” child, born subsequent to the marriage of the father and mother;
an “illegitimate” child, by virtue of the relationship of the child to his natural mother or to his natural father if he has or had a bona fide parent-child relationship with the child; A child is “legitimated” under the law of the child’s residence, domicile or under the father’s residence or domicile, if such legitimization takes place before the child reaches the age of eighteen and he is in the legal custody of the legitimating parent or parents at the time of such legitimization;
a ”step-child”,, whether or not born of wedlock, as long as the marriage relationship was formed before the child’s eighteenth birthday;
an adopted child, if the adoption occurs prior to the child’s sixteenth birthday, and the adopting parents have legal custody of the child for two years before or after the adoption. In addition, the child must reside with the adoptive parents for two years before or after the adoption; and
an orphan under certain circumstances.
If the person is over twenty-one years of age or married, then he is a “son” or she is a “daughter” for immigration purposes. However, a “son” or “daughter” must also have qualified as a “child” when he or she was less than twenty-one years of age.
Under INA 101(b)(2), a parent, father or mother is established by reason of the “child” definition.
Children born to the same parents and another child born to the same mother, even if the father is different.
Procedure and Documents
An application through either familial category is initiated by filing a petition for alien relative on Form I-130. This form must be accompanied by proof of relationship to your relative. When filing an I-130 petition on behalf of a spouse, both the petitioner and beneficiary must provide biographical information on Form G-325A, and each must submit four proper, passport-style photographs.
Once USCIS approves your petition for alien relative, it sends a notice of approval to the petitioner on Form I-797. The original petition and a duplicate copy of the approval notice are sent to the National Visa Center (“NVC”) if you are petitioning for a relative who is abroad. In general, the NVC will forward to the beneficiary the instructional package for immigrant visa processing, containing a biographical data form and checklist of required documents to be returned to the designated consulate where the paperwork will be processed. In preference cases in which there is a backlog of visa availability, the NVC will merely notify the beneficiary of the receipt of the petition and, at a later date, will send the instructional package to the beneficiary. Immigrant visas are always available for immediate relatives. If your relative is in the United States, he may be able to file an application to register permanent residency or adjust status on Form I-485 while staying in the United States.
Approval of an alien-relative petition does not grant the beneficiary authorization to live and work in the United States It merely serves as the basis upon which an alien can submit an application for permanent residency, either in the United States or abroad. If an immigrant visa number is immediately available, and the applicant is not in possession of a valid nonimmigrant visa, USCIS expects the applicant to wait abroad until a visa number becomes available. We continuously remind our clients of the harsh three- and ten-year bar rules for overstaying a nonimmigrant visa, even if there is an approved petition. Such aliens can accumulate unlawful presence while awaiting their visa in the United States. If this happens, and there is no other relief to adjust status, then he must return to his home country to seek an immigrant visa.
The potential for a waiver under INA 212(a)(9)(B) is limited to persons with a spouse or parent who is an American citizen or permanent resident. To qualify for a waiver, the applicant must establish that denial of the waiver could result in “extreme hardship” to the American citizen or lawful, permanent resident spouse or parent. Extreme hardship involves more than the usual level of difficulties associated with being separated from one’s family in the United States.
To sponsor a relative for lawful permanent residency or a green card, you must provide the following documents: proof that you are an American citizen or lawful permanent resident, Form I-864, Affidavit of Support, and necessary documents to prove that you can sponsor your relative and that your relative will not become a public charge in the United States Also, the relative for whom you are petitioning, must pass a medical examination, an NCIC check and obtain a local police certificate.
To sponsor a family member, the petitioner must show that he has assets of at least 125% of the federal poverty guidelines published in USCIS’ Form-864P. Form I-864 must be filed with virtually all family-based adjustments of status and family-visa applications. Derivative family members joining the principal beneficiary after he immigrates also need Form I-864. The affidavit of support is used to show that, upon arrival, in the United States, an alien will not become a public charge. Therefore, the American citizen must show that he can financially support his alien relative. In order to show financial stability, the petitioner must provide his tax returns for the past three years, along with IRS forms, W-2 for all three years, pay stubs, bank records and a letter from his present employer.
If the petitioner does not meet the financial requirements, he must find a co-sponsor. More than one joint sponsor may be used. Each joint sponsor, however, must personally qualify. Each joint sponsor is jointly and severally liable on the affidavit under INA 213A(f)(2). If the individual sponsor’s income does not equal or exceed 125% of the poverty level, a sponsor can utilize the additional income of household members or dependents. The household members must be related to the primary sponsor by birth, marriage or adoption and must have lived in the sponsor’s household for at least six months prior to filing Form I-864. Each household member must promise to help support the alien by signing Form I-864A, Contract Between Sponsor and Household Members.
Who Is Legally Obligated Under FormI-864?
Form I-864, Affidavit of Support, creates a legally enforceable contract between the petitioner/sponsor and the American government. The contract is for the benefit of the sponsored alien or for the benefit of any local, state, federal governmental agency, or private entity that administers any means-tested public benefits programs. These governmental or private entities as well as the sponsored immigrant may sue for enforcement of the affidavit of support. The affidavit of support is valid for ten years from the date of execution or until an alien becomes an American citizen. If you are petitioning for your spouse, a subsequent divorce does not absolve you from the liability under an affidavit-of-support agreement. Sufficiency of the affidavit of support is determined at the time of the adjustment-of-status or visa interview.
Immigration Through Marriage
If you are married to an American citizen or permanent resident, there are several types of visas by which immigration to the United States can occur. The K visa is a hybrid document because it is a nonimmigrant visa designed to facilitate the admission of intending immigrants. It includes the fiancé of the American citizen and the fiancé’s children under the age of twenty-one. In addition, the K visa includes spouses of American citizens and their unmarried children under the age of twenty-one. It allows an alien to enter the United States to apply for lawful, permanent residency status.
K-1 Visas For Fiancés of American Citizens And K-2 Visas for Their Minor Children
Under INA 101(a)(15)(K), an American citizen can immediately petition for his fiancée or her fiancé. To receive a K visa, the following requirements must be met:
The beneficiary alien must be a fiancée/fiancé of the American citizen;
The beneficiary fiancé and the American citizen fiancée must have previously met in person within two years of the date of filing the peition, unless a waiver is granted;
He must enter the United States solely to conclude a valid marriage with the American citizen;
He must marry the American citizen within ninety days after entry into the United States and apply for permanent residency;
Minor children can accompany the fiancé as K-2 visa holders.
Procedure
An American citizen petitioner must file petition on Form I-129F under INA 214(d) and provide supporting documents, including color photographs of both the petitioner and beneficiary;
An American citizen petitioner must file Form G-325A for both the petitioner and the beneficiary;
The petitioner must file the petition at his place of residence;
The petitioner must provide proof that there is a bona fide intention to marry within ninety days of the fiancé’s entry to the United States; and
Both parties must demonstrate that there are no legal impediments to the marriage.
Upon approval, USCIS sends the petition to the appropriate consular post. The approved petition remains valid for four months from the date of USCIS’ action. The petition can be revalidated for four-month periods. Denial of a petition may be appealed to the Administrative Appeals Office. The petition is automatically terminated when a petitioner dies or withdraws it. An American consulate abroad issues the K visa based on evidence showing that an American citizen and his fiancée met within two years of filing of the petition.
The minor, unmarried children of a K-1 principal beneficiary who are listed in the petition may be accorded K-2 status if accompanying or joining the beneficiary after he arrives in the United States. Neither a separate petition nor filing fee is required. The cut-off date for issuance of a K-2 visa is one year from the date of issuance of the K-1 visa to the principal beneficiary. Thereafter, an immediate relative or second preference petition is required for the dependent.
K-3/K-4 Visas for Spouses of American Citizens and Children of Non-citizen Spouses
A K-3 visa is available to a person who is validly married to an American citizen and the American spouse has filed an I-130 petition on behalf of the spouse. An unmarried child of a K-3 visa holder does not need a separate I-130 petition. An application for a K-3 visa is filed on Form I-129F. If the K-3 visa holder was married abroad, he must apply for the K-3 visa in the country in which the marriage took place. An unmarried child of a K-3 applicant may immigrate to the United States as a K-4 visa holder. If a K-4 child is inadvertently left off Form I-129F, the consular officer will process a K-4 visa for the child. The petition for an alien fiancé must provide proof that the petitioner has previously filed a petition for alien relative on Form I-130.
The Visa Process for K Visa Beneficiaries
Upon receipt of the approved petition on Form I-129F from USCIS, the consulate will issue a letter to the beneficiary outlining the steps for his visa application. Since a K visa applicant seeks to enter the United States to apply subsequently for immigrant status, he must present the following documents to an American consulate:
Form OF-156 (in duplicate) and supplement (in single copy), which the consulate sends to the applicant upon receipt of the approved petition;
Valid passport;
Birth certificate;
Evidence of termination of prior marriages (even if such evidence was provided as part of the underlying petition);
Police certificates, if available, from the beneficiary’s present place of residence and any place in which he has resided for six months or more from the age of 16;
Form OF-157, Medical Examination Record; and
Evidence of available financial resources to demonstrate that the beneficiary will not become a public charge in the United States.
Once the documents are submitted, the consular officer begins clearance procedures, requesting priority handling and a response within thirty days. Upon completion of the security clearances, the consular officer will interview the applicant to determine eligibility as if the beneficiary were applying for an immigrant visa as an immediate relative. If the consular officer finds the beneficiary to be eligible, he will issue a K visa, valid for six months and a single entry without charge or requiring fingerprints. He will seal the documents in an envelope and give them to the beneficiary to present at the port of entry to the United States
Consular Processing Issues
If the consular officer finds that the applicant’s marital history is inconsistent with the statements in the petition or that the children of the beneficiary were not named in the petition, he is required by law to suspend action and return the petition to the NVC with a memorandum of findings for reconsideration. When the beneficiary is pregnant and this condition is not disclosed on the petition, the consular officer should confirm that petitioner is aware of pregnancy and solicit petitioner’s desire to proceed with the case. When multiple petitions are received for the same beneficiary, the consular officer is to suspend action and return the petitions to the NVC, which will then transfer them with a memorandum of findings to USCIS for reconsideration. USCIS will interview each of the parties, and, if no one wishes to withdraw the petition, then the burden falls to the officer to enter an appropriate order. In addition, the consular officer may deny the petition based on grounds of inadmissibility. If no waiver is available, then the visa will be refused to the applicant. If a waiver is available, however, then the consular officer will return the petition to USCIS for reconsideration.
Admission to the United States and Adjustment of Status
K-1 Non-immigrant Visa
K-1 visa holders are admitted to the United States with a single entry visa for ninety days to marry the petitioner. USCIS may authorize employment during this period. K visa holders are ineligible for an extension of stay or change of status. Upon marriage to the petitioner within ninety days, a K-1 fiancé must apply for adjustment of status. If the marriage does not occur, then the K visa holder must leave the United States. The adjustment of status from a K-2 to a lawful permanent resident is particularly helpful in the situation in which an American citizen marries a K-1 fiancé after the fiancé’s K-2 child turns eighteen. The K-2 child may file his adjustment of status application without a petition for alien relative effectuated on Form I-130. USCIS, however, must approve his adjustment of status on Form I-485 before the child turns twenty-one to avoid aging out problems. The Child Status Protection Act (“CSPA”) does not help the K-2 child in this situation since the CSPA does not apply to K-2 visa holders. The only remedy is to request USCIS to put the processing on a fast track to avoid age-out problems.
A K-1 visa holder cannot change or adjust his status under INA 248 except through marriage to the K-1 petitioner under INA 245(d). Pursuant to the Immigration Marriage Fraud Amendments Act, K-1 and K-2 visa holders are granted conditional residency status for two years. The conditions of residency must be lifted on the second anniversary of the granting of conditional residency as discussed below.
K-3 and K-4 Visas
The K-3 and K-4 visa holders are admitted to the United States for two years, and their visas may be renewed for two-year periods as long as the American spouse has not received an approval of the petition for alien relative on Form I-130, or the K-3 visa holder filed for an immigrant visa or adjustment of status; and he has not yet received an approval.
A K-3 visa may be terminated within thirty days of the following events:
1. the denial or revocation of a petition for alien relative on Form I-130;
2. the denial or revocation of the adjustment of status application on Form I-485;
3. the divorce between the K-3 visa holder and his American spouse; or
4. the marriage of a K-4 visa holder.
Similarly to K-1 and K-2 visa holders, the K-3 and K-4 visa holders can neither change their status in the United States nor adjust their status on any other basis except by marriage to the same American citizen who petitioned for the K-3 visa applicant. K-3 and K-4 visa holders are allowed to work in the United States, but they must apply for employment authorization on Form I-765. Further, K-3 and K-4 visa holders can travel outside the United States without obtaining advance parole. If the marriage is less than two years old at the time of entry to the United States or adjustment of status, under INA 216, Immigration Fraud Amendments of 1986, a K-3 spouse will receive conditional residency.
Removal of the Conditions on Permanent Residency
An alien spouse who obtained his conditional-residency pursuant to a qualifying marriage must petition for removal of this status within ninety days of the second anniversary of the grant of the conditional residency under 8 CFR 216.4(a)(1). If, at the time of adjustment-of-status interview or application for admission into the United States, the marriage is less than two years old, the immigration status is granted for a two-year period. The actual green card expires on the second anniversary of the date the conditional residency was granted, not two years from the date of marriage. In order to convert the immigrant’s status to one of an unrestricted, permanent residency, the petitioner and the beneficiary must submit a joint petition to remove conditional residency on Form I-751. They must file this petition within twenty-one to twenty-four months of the initial granting of conditional residency.
Conditional residents are aliens who are lawfully admitted for permanent residency pursuant to a qualifying marriage. A qualifying marriage is one entered into fewer than twenty-four months before the alien obtains conditional-residency status by virtue of such marriage. The immigrating spouse and the petitioning spouse must file Form I-751 jointly to remove the conditions of conditional residency of a non American spouse. The filing of the joint petition or a waiver, discussed below, automatically extends the alien’s status until Form I-751 is adjudicated. A conditional resident is entitled to receive an I-551 stamp in his passport or, if no passport exists, on an I-94 for a period of one year while awaiting the decision on the joint petition to remove conditional residency.
Documents
Form I-751 must be accompanied by evidence demonstrating that the marriage was entered in good faith. Under 8 CFR 216.4(a), the evidence should include documents establishing joint ownership of property or joint tenancy at a common residence; commingling of financial assets, birth certificates of children from the marriage, photos of the couple taken during marriage ceremony, affidavits of persons having knowledge of the good faith of the marriage; and other documents establishing its bona fides. If an I-751 is not timely filed, the alien’s conditional-residency status automatically terminates, and USCIS may initiate removal proceedings.
Termination of Conditional Residency Status
Conditional residency is terminated if, before the second anniversary of the granting of this status, USCIS determines that:
1. Marriage was judicially annulled or terminated other than through the death of the American spouse;
2. An alien spouse entered into the marriage upon payment of a fee or other consideration to the American spouse to procure entry to the United States;
3. The alien and his American spouse fail to petition USCIS for removal of conditions of residency, or the spouses fail to appear at USCIS interview (unless good cause shown or unless the non-citizen spouse filed Form I-751 seeking a waiver of the joint-filing requirements).
Adjudication Criteria
USCIS will lift the conditions of conditional residency if the following requirements are met:
· the qualifying marriage was valid in the jurisdiction where it took place;
· the marriage was entered in good faith;
· during the two-year period of the non-citizen’s conditional residency status, the marriage was not judicially annulled or terminated; and
· no fee was paid to induce the filing of the petition for alien relative.
Waiver of Joint Filing Requirements of Form I-751
If an alien cannot file a petition for removal of conditions on permanent residency with his spouse due to his death or the breakdown or termination of the marriage, he may file alone by requesting a waiver of the joint-filing requirement. Under INA 216(c)(4), there are three grounds upon which USCIS will waive the joint filing requirement:
· Extreme hardship grounds – the conditional resident spouse will be subject to extreme hardship if he is removed from the United States, and the hardship circumstances arose subsequent to the granting of conditional residency;
· Good faith grounds – the conditional resident spouse must show that he entered into the qualifying marriage in good faith at its inception, but the end result was divorce or annulment; or
· Battered child or spouse grounds – the conditional-resident spouse entered into the qualifying marriage in good faith and the conditional resident spouse or child was battered or subject to extreme cruelty by the American spouse or parent. This waiver does not require that the parties be divorced, and it can be filed at any time, even after the expiration of conditional-residency status.
Waiver based on battery and extreme cruelty must include evidence that the battered spouse or child experienced forced detention resulting, or threatening to result in, physical or mental injury, psychological abuse or exploitation, sexual abuse or exploitation, rape, incest or forced prostitution. All applications based upon a claim of extreme mental cruelty must include an evaluation by a professional recognized by the Government as an expert in the field. The regulations state that only licensed clinical social workers, psychologists and psychiatrists are recognized by USCIS as professionals capable of providing such evaluations. The confidentiality of information provided to USCIS concerning the abused spouse or child, including their whereabouts, is protected by the INA and its regulations.
If the marriage is terminated by the death of a spouse and a petition is filed by the deceased petitioner, USCIS may deny the petition unless discretionary humanitarian relief is available to avoid revocation of the petition upon his death. Also, widows and widowers may be eligible to self-petition. The petition should include evidence of the bona fide nature of the marriage and proof that the alien has been a spouse of American citizen for at least two years. In addition, the alien must show that the alien was not legally separated from the American spouse at the time of death or the alien was not remarried at the time of the American citizen’s death. This petition must be filed within two years of the American citizen’s death
Adjudication of Waiver
USCIS’ service centers routinely refer I-751 waiver petitions to the appropriate local office to interview the conditional resident regarding the waiver petition. The conditional resident’s failure to appear for an interview will result in denial of the petition and initiation of removal proceedings unless he establishes good cause for failure to appear and USCIS subsequently reschedules the interview.
USCIS may deny the I-751 waiver petition as a matter of discretion, but it must provide the applicant with its decision in writing. If USCIS denies the petition, then the decision must state the reasons for denial. A denial results in termination of the conditional-residency status, and the conditional resident must surrender his green card. There is no appeal, but the conditional resident can seek de novo review of the I-751 before an immigration judge. USCIS bears the burden of proof in removal proceedings if it terminated the petition for substantive reasons such as fraudulent marriage or fee paid for filing of the visa petition. The denial of the petition for removal of conditional residency by the immigration judge may be appealed to the BIA and subsequently can be reviewed by the court of appeals of the appropriate circuit.
Representing conditional residents when life does not go as planned is a challenging task. When a couple is separated or divorced at the termination of the two-year conditional period, hiring of an experienced attorney is very important. An experienced attorney can determine the proper timing of the filing of the Form I-751, assist in selection of the right waiver, gather necessary documents so that the client is prepared for every contingency and prepare the documents so that they comply with USCIS’ constantly evolving policy and requirements for I-751 filings.