__________________________________________________________________________FAMILY IMMIGRATION
Eligibility Requirements
The most popular way to obtain status of Lawful Permanent Resident (LPR) is through family-sponsored immigration. In order to qualify for immigration benefits, alien must be a close relative of an American citizen or LPR. There are four preference categories of family based immigration in addition to the category of immediate relatives. Immediate relatives of American citizens may immigrate without numerical limit. If qualified, immediate relatives have immigrant visas always available for them. Certain other relatives of US citizens and LPRs are classified as four preference groups for which limited amount of visa numbers are allocated each year. Such aliens may immigrate only after the U.S. Department of State Visa Office Bulletin shows that their preference category is “Current” or has availability date later than their “priority date”. The priority date is the date when the petition on behalf of alien relative was filed.
Immediate relatives
(A) spouse of a U.S. citizen. Please note that Federal Law does not recognize gay marriage;
(B) unmarried child of a U.S. citizen who is under the age of 21. This category includes stepchildren, providing the child was under 18 when the marriage creating the relationship occurred, and adopted children, if adopted under the age of 16 and have resided with adopting parent or parents at least for 2 years;
(C) parent of a U.S. citizen, if the petitioning citizen has reached the age of 21;
(D) widow or widower of a U.S. citizen, if married for at least two years at the time of the U.S. spouse's death and not then legally separated, provided the alien spouse files the petition within two years of the death while still unmarried; and any child (minor and unmarried) of that spouse.
in the case of the widow or widower , the deceased spouse need only have been a U.S. citizen at the time of death.
Preference categories
1. Unmarried son or daughter of U.S. citizen (who is 21 or older).
2.a. Spouse or child of LPR
2.b. unmarried son or daughter of LPR
3. Married son or daughter of a U.S. citizen
4. Brother or sister of a U.S. Citizen if the citizen is at least 21.
Note that the spouse or child accompanying or following to join the principal beneficiary of a
family-based petition is classified under the same group as that beneficiary and enjoys the same priority date.
Family-Sponsored Visa Filing
U.S. citizen or LPR must file Form I-130.
Self-petitioning alien as the widow or widower of a U.S. citizen, or as the spouse or child of an abusive U.S. citizen or LPR must file Form I-360.
If U.S. citizen petitions for foreign orphan, he/she must file Forms I-600 and I-600A.
Immigration based on marriage:
The validity of marriage is determined by the law of the place where the marriage is celebrated.
However, not recognized:
- the marriage entered for the sole purpose of immigration benefits
- “Proxy marriages” (were the parties are not physically present in the presence of each other)
- Marriages that are in conflict with public policy of the intended place of residence
• Marriages
- where spouses do not intend to live together at the time of concluding marriage
- Homosexual marriages
If the marriage is celebrated less than two years before the grant of immigrant status, alien spouse obtains “conditional” resident status. Conditional LPR status expires in two years unless certain conditions are met.
Removal of Condition
In order to remove the condition, spouses must jointly file form I-751 90 days prior to expiration date of the LPR status (2 years after the status was granted). The USCIS will consider both the validity and the good faith of the marriage when reviewing the I-751 and at the time of the possible interview.
There is a waiver procedure available for the parties that are divorced or if the petitioning spouse refuses to file I-751 or attend the interview.
Waivers of Joint Filings :
A waiver may be granted in the following four situations.
(A) Extreme Hardship : Alien must show that extreme hardship would occur if the alien spouse were removed.
(B) Good Faith : Alien must show that the alien spouse entered into the marriage in good faith. Evidence of good faith includes documentation demonstrating common assets of the parties, any children born to the marriage, and the length of time the parties lived together before breaking up.
Also alien must show that the marriage has been terminated through divorce, annulment, or death.
Finally, the alien must show that he or she was not at fault in failing to file a timely petition.
(C) Battered Spouse or Child : Alien must show that the alien spouse entered into the marriage in good faith; and that the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by the other spouse or parent. The alien spouse must also show that he or she was not at fault in failing to file the joint I-751 in a timely manner.
(D) Death of the petitioning spouse
I-751 Filing
What to File :
(1) Form I-751 within 90 days before the second anniversary of the grant of conditional LPR status
(2) Payment of the appropriate filing fee .
(3) Supporting documentation that the marriage was in a good faith. Examples of such documentation include:
- joint ownership of property
- joint tax returns, insurance policies, bank statements, utilities bills etc.
- birth certificates of children born to the marriage
- affidavits from at least two friends or relatives attesting to the marriage's good faith
(4) Form G-28, if the alien is represented.
Failure to File on Time:
If the I-751 is not properly filed during the 90-day period before the second anniversary of obtaining conditional residency status, it is possible to still file the form, as long as alien shows a good cause for failing to file the form on time.
