Family Based Immigration

Family Based Immigration

 

Family Based Immigration

 

Family based immigration focuses on keeping families united.  However, not all familial relationships may serve as a basis to apply for permanent residency. Under the Immigration and Naturalization Act, there are two primary categories (a) immediate relatives and (b) preference immigrants.

Immediate relatives are not subject to numerical limitations. Meaning processing their application takes a relatively short period of time- from five to twelve months. They include:

  • Spouses of US citizens;
  • Minor unmarried children (under 21); and
  • Parents if the US petitioner is at least 21 years of age.

Preference immigrants are subject to preference provisions that specify the number of immigrant visas allotted to each of the family preference categories. The category affects the waiting period for each type of immigrant. Once the number is reached for a certain fiscal year, applicants need to wait to submit their petitions. The amount of time each applicant waits may be from a few months to a few years. The categories include:

  • First Preference: unmarried sons and daughters of US citizens who are 21 yrs of age or older;
  • Second Preference: spouses or children of LPRs (2A) and unmarried sons and daughters of LPRs (2B);
  • Third Preference: married sons or daughters of US citizens; and
  • Fourth Preference: Siblings of US citizens, if the citizens are at least 21 years of age.

Process for Family Based Immigration

  • Forms:
    • Applicant must submit the appropriate I-130 petition form;
    • An EAD (Employment Authorization Form) may be filed concurrently with the application
  • Where to Process:
    • If the family member is inside of the United States, they will go through an adjustment of status process in order to obtain their green card.
    • If the family member is outside of the United States, they will go through consular processing at the US embassy or consulate abroad.

Required Documentation for Family Based Immigration

  • Proof of the petitioner’s status;
  • Passport photos;
  • Immigration medical examination provided by a USCIS approved medical examiner;
  • Birth certificates;
    • For spouses: to prove citizenship or country of birth
    • For parents: may be used to prove parent-child relationship
    • For siblings: may be used to show siblings have at least one parent in common
  • Affidavit of support:
    • Petitioner must prove they make 125% of the Federal Poverty Guidelines;
  • Marriage certificate and divorce decrees if applicable.

Other Documentation for Family Based Immigration

Other documentation may be required depending on the type of relative sponsored. If you would like to sponsor a family member, call today at (713) 909-0752 or email at admin@nslawpllc.com to schedule a consultation.

Ways a petition may terminate:

Petitions may be filed untimely or contain missing information and therefore become rejected. Other common ways a petition terminates includes:

  • Divorce
  • Death of the petitioner
  • Petitioner withdraws the application and notifies immigration
  • Lapse

Green Card through Marriage

Marriage-Based Green Card

The Green Card obtained by marriage is the most straightforward path to citizenship. In order to obtain this green card, the spouses must prove they are in a bonafide marriage. This means that the marriage was not entered into for the purpose of evading immigration laws and at the time of the marriage, the spouses intended to build a life together. The burden is on the petitioner to prove that the marriage is bonafide.

Given the amount of fraudulent marriages, this type of green card requires extensive documentation and receives extensive examination by the USCIS. It is highly recommended to use an attorney to complete this process. If you’re ready to apply for a green card for your spouse, contact us at (713) 909-0752, schedule an online consultation at Calendly – nsimmigrationlawfirm or email at admin@nslawpllc.com to set up an appointment.

Documentation to prove bonafide marriage

  • Marriage certificate
  • Birth certificates of any children born to them;
  • Joint income tax returns;
  • Joint bank statements;
  • Joint utility bills;
  • Photo albums from the wedding, engagement photos, photos of trips, outings with friends
  • If previously married:
    • Proof of termination of other marriage (divorce decrees)
    • The USCIS will likely ask to examine an overseas divorce
    • If there were previous petitions, those will need to be included with the application

Process for Family Based Immigration

  • The spouses file a petition I-130A once married;
  • The spouses may also file an EAD (employment authorization) along with the petition, which should arrive approximately three months from the date of the application;
  • USCIS will schedule a biometrics examination and set an interview date;
  • Depending on where the spouse is located, may conduct an interview at the USCIS or a consular or US embassy abroad;
  • At the interview, you will be asked very intimate questions regarding your relationship. It is highly recommended that you have an attorney walk you through the types of questions that may be asked.
  • A conditional green card will be granted for two years. The applicant must apply to remove conditions within 90 days prior to the expiration of two years.
  • The applicant will then obtain a green card without conditions, and may apply for citizenship two years and 9 months following that date.

Potential Bars

  • Criminal history of either the petitioning spouse or the beneficiary;
  • Incorrectly or untimely filed petition;
  • Initial entry into the US was unlawful or overstaying a visa;
  • Unauthorized employment; or
  • USCIS officer suspects fraud. If the officer suspects fraud, a few things may occur:
    • They may deny the petition without further investigation
    • They may conduct a field investigation, which includes speaking with your neighbors, conducting a home visit, or requesting another interview.

Certain bars may have waivers. It is important to be completely honest on your petition and list any violations in order to remedy them quickly.

Domestic Violence and the Green Card

Many times, the petitioning spouse may use the green card as a method of keeping the beneficiary spouse in an abusive relationship. The beneficiary spouse may, however, have several remedies. Congress passed the Violence Against Women Act (VAWA), under which the abused spouse (man or woman) may still apply for a green card and naturalization under certain circumstances. In order to qualify, at a minimum the abused spouse must report the violence to the authorities and will still have to prove the requirements of a legitimate marriage.

Divorce with a Green Card Marriage

Unfortunately for some folks who obtained their green card through marriage, the petitioning spouse may hold the green card over the beneficiary’s head throughout the marriage. Divorce does not necessarily hinder the beneficiary keeping their green card or applying for citizenship. However, this one is complicated. Each situation is unique depending on the reason for the divorce and date of separation and divorce.

First and foremost, the applicant will always have to prove they entered into a bonafide marriage prior to applying for naturalization. Depending on whether the application for adjustment of status was approved, it could affect the applicant’s ability to naturalize. If an applicant in still within the conditional permanent resident status stage, the applicant will still need to file an I-751 joint petition to remove the conditions on residency within a specific time period. The joint requirement may be waived as long as the applicant can show they were not at fault for failing to file a joint petition.

Consequences of a Sham Marriage 

  • Under §275(c) of the Immigration and Nationality act, any individual who knowingly enters into a sham marriage for the purpose of evading any provision of the immigration laws can be imprisoned for not more than 5 years or fined $250,000 or both.
  • Under §204(c) of the Immigration and Nationality act, a finding of fraud will forever bar the perpetrator from any immigration benefit

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