First Considerations about a Family-Based Immigration Petition
A preliminary and basic understanding of the immigration petition is fundamental before starting the process.
ContextMany people in the United States have family members who live in other countries and wonder if they can bring them here. The first thing to emphasize is it is not true that, if an immigrant settles in the United States, he can obtain green cards (permanent residence) for the entire extended family, and so on.
Those who can request a residence document for their relatives are called sponsors. US citizens and permanent residents can act as a sponsor.
Immediate Relative: These visas are based on a direct family relationship with a U.S. citizen, such as a spouse, child, or parent. The number of immigrants in these categories is not limited in any fiscal year.
Family Preference: These visas are for specific more distant family relationships with a U.S. citizen and some specific relationships with a Lawful Permanent Resident (LPR). The number of immigrants in these categories is limited each fiscal year.
Immigrant Visa: It is a permanent visa that allows an alien to live and work permanently in the United States.
There are specific steps to take for a U.S. citizen or permanent resident to successfully complete an immigration petition for a relative.
Step 1: Submit the petitionTo begin the process, a citizen or permanent resident will need to mail an eligibility petition on USCIS Form I-130, along with supporting documents. The supporting documents are to prove that both the petitioner (citizen or resident) and the applicant (the future immigrant) meet the requirements of the law, among others, that their family relationship is real.
Step 2: USCIS makes a decisionOnce USCIS receives the petition, an immigration officer is assigned to the case to consider whether to approve or deny the application. If the process is approved, the next step depends on whether the applicant wants to complete his process within the United States whether the applicant must complete it the process outside the U.S.
If a person must leave the United States to complete the process, once the I-130 petition is approved, the case file will be sent to the National Visa Center for further processing. If the petition is denied, the petitioner may file a new petition after determining what changes need to be made to promote approval.
Step 3a: Apply for residency within the US.Certain individuals who are physically present in the United States and have entered the United States legally, with a visa, can use the adjustment of status process to apply for residency without leaving. An application for adjustment of status generally includes a packet of forms and supporting documents that include:
• I-485, Application to Register Permanent Residence or Adjust Status
• I-864, Affidavit of Support
• I-693, Medical Examination Report, and Immunization Record I-765, Application for Employment Authorization (optional)
• I-131, Application for a travel document (optional)
Step 3b: Relatives in preference categories awaiting visa availability.This step is only carried out if the applicant is in a Family Preference group. In this case, if the applicant is not an immediate family member, the immigrant joins a waiting list and will generally wait at least a year before learning if a visa is available.
Step 4: The immigrant applies for a Visa or Green CardIf the applicant's petition has been approved and a visa is available, the applicant must submit an application for permanent residence. This is usually done by applying for an immigrant visa at a US consulate, using Form DS-260. This process is known as consular processing. The applicant must complete various forms, provide documents and take a medical examination.
Do I need a Fiancé or K-1 visa?Unless there are compelling reasons to apply for a fiancé visa, which should be discussed with an attorney, a fiancé visa can be expensive and generate unnecessary expenses. It is preferable to get married and then start the residency immigration process.
Where should I get married?Unless a couple has been married for several years outside the United States, the best strategy is to marry in the United States and submit all documents within the country.
What do I do if I have documents in a language other than English?All documents must be translated into English. A certified translation must be submitted.
Do I need a lawyer for my interview with the immigration officer?The presence of a lawyer at the interview with the immigration officer is not mandatory. However, the presence of the attorney can make a difference, especially in complex cases. If you decide to attend if a lawyer, always answer with the truth, state if you do not understand something or have questions, and do not forget to take with you both originals and copies of all documents already sent.
Petitions based on marriage.A permanent resident or US citizen can apply for permanent residence for her spouse in the United States or can apply for an immigrant visa if the spouse is abroad. For a petition to be successful, it is necessary that the petitioner and the applicant be able to prove that the marriage is real, that is, at the time the marriage was contracted, the couple had the real purpose of making a family life and not the simple intention of obtaining an immigration benefit. A marriage abroad that is legal in the jurisdiction where it took place is generally recognized in the United States, unless there is a compelling reason not to recognize it, for example, bigamy. Same-sex marriage is recognized.
Don't get married for permanent residency! This act is fraudulent and criminal and will prevent you from fixing your situation in the United States in the future. In many cases, USCIS will find out and the beneficiary, if in the United States, will be placed in removal proceedings.
Take care when marrying a USC or permanent resident in the United States while you have a tourist visa or other non-immigrant visa. USCIS can examine serious visa fraud issues during the process. Please note that if a United States citizen or permanent resident marries someone during their removal proceedings (after a Notice of Appearance or Notice of Appearance has been issued, even if no court date has yet been set), the couple must demonstrate to a high standard, with is convincing evidence, that the marriage was entered in good faith (that it is not a sham to avoid deportation).
If the marriage has lasted less than 2 years, the applicant will be granted a two-year conditional green card. Two years after conditional residency is granted, the couple must jointly request the removal of the conditions. Divorce or separation during the two-year conditional residence period can create problems for a spouse to acquire permanent resident status.