FAMILY BASED IMMIGRATION OVERVIEW

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Immigration through a family member who is a US citizen or permanent resident is the most common way of gaining US residency.  All that is required is the qualifying family relationship.  The ease with which a person can immigrate through a family member is in keeping with American notions of the importance of the family. 

The first question to address in a family-based immigration case is whether a qualifying family relationship exists. Qualifying relationships are grouped into two main categories – immediate relatives and other close family members.  Immediate relatives of US citizens are given special preferential treatment. First and foremost, they are allowed to immigrate in unlimited numbers.  The following are immediate relatives:

·        Spouses

·        Children, unmarried and under 21

·        Parents

Other close family members of citizens and permanent residents are also allowed to immigrate, subject to annual numerical limitations.  The following are other relatives who are allowed to immigrate, and the annual limits on each category:

·        Unmarried adult children of citizens – 23,400

·        Spouses and unmarried children of permanent residents – 114,200

·        Married adult children of citizens – 23,400

·        Siblings of citizens – 65,000

There are many technical rules relating to the allotment of visas in this group, as well as definitions of the family relationship.  These will be discussed in a future article.

Preparing the INS application

The elements of the application that must be submitted to the INS are the same for each type of family member.  The main INS form that is used in all family cases is the I-130 Petition for Alien Relative.  The petitioning relative must complete this form.  The application must include documentation of the qualifying family relationship, and of the petitioner’s status as a citizen or permanent resident.  The filing fee is $110.  When the application is made for a spouse, it must include copies of Form G-325A – Biographic Information for each spouse, as well as two color photos of each spouse.  When the application is filed for an immediate relative not subject to annual numerical limitation and the relative is in the US, an application for adjustment of status may be filed at the same time.

If the petitioner is in the US, the application is filed with either the appropriate INS Service Center or INS local office.  Applications for immediate relatives are filed with local offices, and those for other relatives are filed with the Service Center.  If the petitioner is outside the US, they may file the application either with the Service Center that had jurisdiction over the place where they last resided in the US, or with the overseas INS office that has jurisdiction over their overseas residence.  If the petitioner is overseas on US government business, the application is filed in the US.  In some cases, a petitioner residing outside the US may file the application with the US consulate having jurisdiction over their residence.  However, not all US consulates accept such petitions.

If the application is in order and shows the qualifying relationship, if the alien is an immediate relative, they can either adjust status or immediately apply for an immigrant visa at a US consulate.  If the alien is not an immediate relative, they must wait until a visa number become available to either adjust status or apply for an immigrant visa.  In such cases, the priority date is the date on which the INS received the complete application. 

Channels Law Offices
3440 Wilshire Blvd.  suite 808
Los Angeles, CA. 90010
Call:  1 (213) 386-4763 for assistance
Pacific standard time  Monday through Thursday, 10 to 4 p.m.

OBTAINING PERMANENT RESIDENCE THROUGH A SPOUSE

 

The spousal relationship is one of the most common bases for immigration to the US.  US citizens can petition for foreign-born spouses as immediate relatives, meaning the spouse will have an immediately available visa number.  Lawful permanent residents can petition for their spouses, but the petition falls into the second preference family category.  There is an annual limit of 114,200 visas in this category, plus whatever visas are unused in the first preference.  The second preference also includes adult unmarried children of permanent residents.  Within the second preference, spouses receive 77 percent of the visas, or just under 88,000.  Spouses are also eligible to immigrate as derivative beneficiaries of a married adult child of a citizen and of brothers or sisters of citizens.

However the spouse will be immigrating, there are three very important standards that the marriage must meet.

  • The marriage must have been valid at the time it was performed

  • The marriage must still be in existence at the time the immigration process in completed (and not just when the application is submitted)

  • The marriage must not have been entered into for immigration purposes

Was the marriage valid at the time of performance?

For a marriage to be valid, there are two primary requirements:

  • Each party must have been legally able to marry, and

  • The marriage ceremony must be considered legal under the laws where it was performed

In cases where one of the parties had previously been married, the divorce must be final and valid.  Divorces in which neither party was present in the jurisdiction granting the divorce are almost always invalid, whereas those granted in a jurisdiction where both parties were present are almost always valid.  Divorces granted when only one person was present, particularly those that occur in countries known for granting divorces in such cases, are highly suspect.  Whether a subsequent marriage is valid depends on the law of the place of the new marriage.

Common law marriages, which are now quite rare in the US, being recognized in only a handful of states, can be valid for immigration purposes if the laws of the place of residence, or last previous residence, legally recognize them.

Customary marriages, those performed according to local custom but not licensed by civil authorities, may at times be valid for immigration purposes.  Whether they are depends on whether the law of the country where the marriage occurred recognizes the marriage as valid.  Such questions almost always require legal assistance.

Marriages entered into in the US are almost always valid, unless one of the parties was under the age of consent, or if the family relationship between the spouses was too close.  Divorces obtained in the US are also almost always valid as well.


Is the Marriage Still in Existence?

For a person to immigrate through the spousal relationship, the marriage cannot have been legally terminated.  Furthermore, if the parties are separated and do not plan to live again as husband and wife, a petition can still be denied.


In places with no-fault divorce laws, where a legal separation can mature into a divorce, the period of separation will most likely not be considered to still be in existence.

Was the Marriage Entered into for Immigration Purposes?

Over the past two decades, Congress and the INS have grown increasingly suspicious of marriages.  Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years.  While this conditional status is for the most part the same as regular permanent residence, it is designed to provide assurance that the parties did not marry for immigration purposes by allowing the conditional status to be revoked if the marriage does not last two years.

It is important to note at the outset that it is not against the law to consider immigration in deciding to get married.  Considering immigration benefits will only be a problem if those were the ONLY reason to marry.  So a couple, one of whom is undocumented and the other a citizen would not be breaking the law if they married before they would otherwise have planned to so the noncitizen can legalize his or her status.  Despite this, and despite the fact that it can be impossible to determine why people marry, the INS makes this determination every day.  Therefore, it is important to know what factors will make the agency suspect marriage fraud.

Some of the most obvious of these are if the couple did not know each other for very long before marrying or had seen each other only a few times before marrying.  Also, if the couple does not live together, the INS will be very suspicious, even more so if they have never lived together.  Also, marriages between couples from different backgrounds, especially those that lack a common language, are viewed with suspicion.

The INS is very suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the INS.  In such cases, the beneficiary is required to stay outside the US for two years after the marriage unless the parties can prove the marriage is bona fide.  The best way to show that the marriage is bona fide is to present evidence of the parties’ joint ownership of property and their cohabitation.  Evidence of children born in the marriage, as well as affidavits from friends and family testifying to the bona fides of the marriage are also helpful.

Petitions for spouses filed by lawful permanent residents who themselves obtained that status through marriage are subject to certain rules.  First, five years must have passed since the permanent resident spouse became a permanent resident.  Second, the permanent resident spouse must prove that their prior marriage was not entered into for immigration purposes.  These requirements will be waived if the prior marriage was terminated by reason of the death of the spouse.

 

Channels Law Offices
3255 Wilshire Blvd.  suite 1010
Los Angeles, CA. 90010
Call:  1 (213) 386-4763
Pacific standard time  Monday through Thursday, 10 to 4 p.m.

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