Preserving family unity is a fundamental purpose of U.S. immigration law, but many families face significant challenges on the road to joyful unification. Benach Collopy attorneys have extensive experience navigating the complex process of uniting family members in the U.S. Like many other areas of immigration law, the preparation of family-based petitions depends upon our ability to tell your story. At Benach Collopy, we take the time and interest to learn about you and your family members, your challenges and joys, and the details that will ensure a successful family-based application. Benach Collopy attorneys will help your family determine if you or your loved ones qualify for any of the following family-based immigration options.
Immigrant Visa Petitions
U.S. citizens and permanent residents may sponsor (or “petition” for) certain family members to become permanent residents of the United States. Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with U.S. Citizenship and Immigration Services (USCIS) or the U.S. Consulate abroad. Family relationships that qualify for an I-130 immigrant visa petition are those of immediate relatives (spouses of U.S. citizens, parents of U.S. citizens who are over 21, and under-21 children of U.S. citizens) and other close family members.
The date of receipt by USCIS of the Form I-130 establishes the individual’s “priority date” for an immigrant visa. Because U.S. law does not establish a limit on the number of immediate relatives that may immigrate, those who qualify as immediate relatives need not wait for their priority dates to become current. Family members who are not immediate relatives are subject to limitations on the number of visas available, by preference category and country of origin (see discussion below), and may have to wait months or years for their priority dates to become current. When an I-130 petition is approved, and the priority date is current (i.e., after any applicable wait time has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for “adjustment of status” to obtain lawful permanent residence (a “green card”) in the United States.
It is important to note that an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a “waiver of inadmissibility.” Please see our practice page on Waivers of Inadmissibility. We recommend that an individual’s eligibility and admissibility be assessed thoroughly by immigration counsel before any family-based visa petition is filed, to ensure that the foreign national family member ultimately may obtain permanent residence.
The marital relationship is one of the most common methods to immigrate to the U.S. Unlike other immediate relative relationships (parent and child) that can be established solely via documentation such as a birth certificate, USCIS must establish that a marriage is valid for immediate relative purposes. USCIS will consider a marriage to be valid if it was valid at the time it was performed, if the parties are still married at the time the immigration process in completed, and 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). Any divorce must be final and valid. If a 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.
If the foreign national spouse is in the U.S. pursuant to a lawful entry in another visa category (for example, as a student, an exchange visitor, on a work-related visa, etc.), the U.S. citizen spouse may file a petition for an immigrant visa and permanent residence in one petition package called a “one-step.” Upon applying for the visa petition and adjustment of status to permanent residence, the spouse may obtain work authorization. As long as the foreign national spouse made a lawful entry into the U.S., the spouse will be forgiven for certain other “status-related” immigration violations such as work without authorization or overstaying a period of authorized stay. If the foreign national spouse is not in the U.S. pursuant to a lawful entry, certain waivers of the unauthorized entry or stay in the U.S. may be available that would allow the foreign national spouse to become a permanent resident. Please see our practice page on Waivers of Inadmissibility.
A foreign national spouse who has been married to the U.S. citizen petitioning spouse for less than two years is granted “conditional” permanent residence for two years, and the foreign national spouse must take additional steps at the end of the conditional period to maintain permanent resident status. If the spouse does not file a petition (Form I-751) to remove conditions on residence at the end of the two year period, the conditional permanent resident status terminates and the foreign national spouse is out of status and may be deportable.
Other Family-Based Immigrant Visa Categories
If a foreign national family member is not an “immediate relative,” in order to immigrate based on a U.S. citizen or permanent resident family member’s petition, the individual must fall into one of the specified family relationships with specified numbers of visas available:
- Unmarried adult (over 21) sons and daughters of U.S. citizens (First Preference); spouses and unmarried minor (under 21) children of permanent residents (Second Preference)
- Married adult (over 21) sons and daughters of U.S. citizens (Third Preference)
- Siblings of U.S. citizens (Fourth Preference).
Visas are allocated based on these preference categories, which are then further allocated based on the country of origin of the foreign national family member. Immigrant visas are issued in chronological order in each of the preference categories based on priority dates (the date on which the immigrant visa petition is accepted for processing by USCIS). The Department of State “visa bulletin” is published monthly with updated information on current priority dates and can be found at www.travel.state.gov.
Other Family-based Immigration Options
- Fiancé(e) Visa
A K-1 visa enables a U.S. Citizen to bring his or her foreign national fiancé(e) to the U.S. with the intention of marrying shortly after arrival in the U.S. and pursuing permanent residency. The U.S. Citizen fiancé(e) must file a petition with USCIS demonstrating that the parties have met in person within the past two 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. After the petition has been approved by USCIS, the foreign national fiancé(e) may obtain the K-1 visa at the U.S. Consulate in the foreign country of residence according to the requirements of that consulate (these generally include an interview, a medical exam, and certain other documentary requirements). Please see our practice page on Consular Processing. If the consulate is satisfied that the visa should be approved, the foreign national fiancé will be issued a K-1 visa to enter the U.S. for 90 days, during which the foreign national fiancé must marry the U.S. citizen petitioner. After the marriage, the U.S. citizen spouse may file an application for adjustment of status for the foreign national spouse.
- Special Immigrant Juvenile Petitions
Certain minor children may be eligible to apply for lawful permanent residence in the U.S. as a special immigrant juvenile. The applicant for such status must be under 21 years old, unmarried, and declared a ward of a U.S. court, eligible for long-term foster care, or placed in the custody of a state agency. This process also involves a determination by a state or federal court with family law jurisdiction, that it would not be in the child’s best interests to be returned to his or her home country. This decision is binding on USCIS. Special immigrant juveniles are forgiven for many actions that would otherwise prevent lawful permanent residence, including entry without inspection, inadmissibility at the time of entry, failure to maintain valid nonimmigrant status, working without authorization, and prostitution. A child who receives permanent residency through the special juvenile immigrant category cannot petition for residency for his or her natural or adoptive parents.
- Adoption or Orphan Status
An orphan is a child who is orphaned by the death, disappearance of, abandonment by, desertion by, separation, or loss from, both parents, or if the sole surviving parent is incapable of providing the child with proper care and irrevocably relinquishes custody of the child for emigration and adoption. The child’s country of origin must permit adoptions by foreign nationals, and the prospective U.S. citizen parents must comply with all of the rules of that country relating to adoptions. At least one adoptive parent must be a U.S. citizen, and single adoptive parents must be at least 25 years of age. In certain cases, a foreign-born child may be adopted in the U.S. The child must be under 16 years old at the time the petition for permanent residence is filed (or under 18 if being adopted with a sibling who is under 16).
Prior to the adoption, the adoptive parents and any other adults that will be living with the adopted child must be evaluated through a home study conducted by a USCIS-authorized organization.
- Special Visas For Spouses And Unmarried Minor Children Of United States Citizens and Permanent Residents
In an effort to shorten the process of family unification, USCIS will grant certain nonimmigrant visas to the spouse (K-3 visa) and children (K-4 visa) of a U.S. citizen while they await completion of the permanent residence process. The foreign national eligible for a K-3 visa must be the spouse of a U.S. citizen with a pending Form I-130 that has been filed with USCIS, and must intend to enter the U.S. in order to await the completion of the permanent residence process. Once in the U.S., the K-3 or K-4 spouse or child must file the application to adjust status to lawful permanent residence once the I-130 visa petition has been approved by USCIS. A similar visa (V visa) is available to spouses and unmarried minor children of lawful permanent residents for whom a petition was filed on or before December 21, 2000.