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:
· Children, unmarried and under 21
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
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.
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OBTAINING PERMANENT RESIDENCE THROUGH A SPOUSE
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.
the marriage valid at the time of performance?
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
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