Immigration Law Group LLC
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.