index
mapconsultationhow to immigrate to the UShow to work in the USAUseful Linksfrequently asked questionsforeign researchers

How to Immigrate to the United States

FAMILY-BASED IMMIGRATION

  • General information on family-based immigration
  • The family-based eligibility categories
  • Permanent residency by marriage to a U.S. citizen
  • Should I retain a lawyer?
  • Consultations

GENERAL INFORMATION ON FAMILY-BASED IMMIGRATION
Most people are aware that having a U.S. relative gives one a basis for immigrating to the United States. However, there are various categories of family-based immigration and each has an order of preference, which Congress has determined is preferred for immigration. Every year Congress makes available a certain number of immigration visas under these preference categories.

First Preference: Unmarried sons or daughter of American citizens

Second Preference: Spouses and children, unmarried sons or daughters, 21 years of age or older, of lawful permanent residents

Third Preference: Married sons or daughters of U.S. citizens

Fourth Preference: Brothers and sisters of adult U.S. citizens
With a limited number of immigrant visas made available each year and a far larger number of people applying for these visas, a huge backlog of available visas has developed over time. This has resulted in significant waiting periods for those in lower preference categories. Thus, a foreign national brother or sister of a U.S. citizen will often need to wait years before a visa number becomes available. Once the visa number has been issued, the foreign national relative is then eligible to submit their permanent residency application through a U.S. consulate or embassy of their home country.

The only category under which no numerical visa limitation exists is for the spouse and or minor children of a U.S. citizen. These individuals may petition for permission to immigrate and adjust their status to U.S. a resident at the same time. However, they too must be eligible for admission to the U.S. before a permanent resident visa can be issued to them. Under certain circumstances, the spouse may reside in the U.S while their adjustment of status petition is pending. In addition, they are eligible for a work permit with the filing of the appropriate forms.

THE ELIGIBILITY CATEGORIES
The categories break down as follows:

First Preference: Unmarried sons or daughter of American citizens

Second Preference: Spouses and children, unmarried sons or daughters, 21 years of age or older, of lawful permanent residents

Third Preference: Married sons or daughters of U.S. citizens

Fourth Preference: Brothers and sisters of adult U.S. citizens

A U.S. citizen can file the petition on behalf of his/her:

1. husband, wife, or child under the age of 21;
2. an unmarried child over the age of 21;
3. married child of any age;
4. brother or sister if the U.S. citizen is at least 21 years old; or
5. a parent if the U.S. citizen is at least 21 years

A lawful permanent resident can file the petition on behalf of his/her:
1. husband or wife;
2. unmarried child.

Immigrant petitions for foreign national relatives cannot be filed on behalf of the following persons:
1. An adoptive parent or adoptive child if the adoption took place after the child reached the age of 16, or if the child has not been in the legal and physical custody of the parents for a period a of at least two years;
2. A natural parent if the U.S. citizen gained permanent residence through adoption;
3. A stepchild or stepparent if the marriage that created the relationship took place after the child was 18 years of age;
4. A husband or wife if both were not physically present at the marriage ceremony, and the marriage was not consummated;
5. A husband or wife if the person filing the petition gained permanent resident status by virtue of a prior marriage to a U.S. citizen or permanent resident unless a period of five years has elapsed since the petitioner became a permanent resident, or the prior marriage was terminated by the death of the spouse, or he/she can establish by clear and convincing evidence that the prior marriage was not entered into to evade any provision of the immigration law.

PERMANENT RESIDENCY BY MARRIAGE TO A U.S. CITIZEN
This is often considered to be the fastest way to obtain permanent residency. However, the USCIS looks closely at these petitions to see if the marriage can be considered bona fide or if it has been entered into for the purposes of getting a green card. If the latter is found, the immigration petition is denied and the non-U.S. spouse will be required to leave the country immediately. Fortunately, by far the greater number of spousal petitions are approved.

Other factors that determine the legitimacy of the marriage are that:

1. The marriage must be valid at the time it was entered into (ie. each party was legally able to marry).

2. The marriage must still be in existence. Although the couple may be separated as long as a legal separation agreement has not been entered into the USCIS continues to recognize a relationship.

The other criteria that must be met is that the foreign spouse of the U.S. citizen must be eligible to be admitted to the United States. This means that they are not in deportation proceedings or other limits which may rule out entry into the U.S.


If You Get Married In the U.S.
If the marriage took place in the U.S. and can be evidenced with civil documentation, the U.S. citizen spouse must petition the USCIS for an immigrant visa. At the same time, the foreign-born spouse applies for an adjustment of status to permanent residency. At the same time they may also apply for work authorization and permission to travel abroad if needed.

The work permit and travel permit (advance parole) are usually issued within weeks or, at most, a couple of months. The green card process takes significantly longer. For example, in Los Angeles it can take up to one year for the initial interview with the USCIS. In other cities, the wait is significantly less.

The wait time cannot be avoided by filing in a faster USCIS office, as the petition and adjustment must be filed with the USCIS local office that has jurisdiction over the applicant's place of residence.

In any case, the foreign-born spouse is permitted to live, work and study in the United States. They are also subject to all federal, state and local laws such as income tax filing, driver's license requirements and other laws as applicable.

If You Get Married Outside the U.S.
If a U.S. citizen marries a foreign national outside of the United States, the same initial procedures apply except that the foreign-born spouse must usually wait outside the United States for the immigrant visa to be approved. A new visa category called a K3 Visa may allow the foreign-born spouse to join the U.S. Citizen spouse in the U.S. while the petition process is pending. Procedurally, this petition process also includes presentation of documents and an interview at the U.S. Embassy or consulate in the country where the foreign-born spouse resides, before an immigrant visa is granted. Usually, immigration processing time at the consulate is significantly less than in many local USCIS offices.

Conditional Residency
If the marriage is less than two-years-old before permanent residency is approved, the USCIS issues a conditional residency. In this case, the green card will expire after two years. Conditional residency can be removed within 90 days of the expiration of the green card and must be petitioned for by both spouses. Failure to remove the conditional residency in time places the foreign-born spouse out of status and subject him or her to deportation proceedings.
If the marriage has dissolved for reasons of death of the citizen spouse, spousal abuse, or divorce, the foreign-born spouse may request to have the joint petition requirement waived.

SHOULD I RETAIN A LAWYER?
It seems as if filing under one of the family preferences or as the spouse of a U.S citizen, is one of the most straightforward of all the USCIS petitions. Indeed, the documentation can be significantly less than needs to be submitted for even a nonimmigrant visa. However, the USCIS is very particular about proper documentation and submission of improper documents can mean significant delays in approving an immigrant visa. For example, some countries did not begin registering births in civil records until very recently and many people can only obtain church certificates. However, the USCIS will not accept church records in lieu of a birth certificate unless it is accompanied by an acceptable affidavit and translations. It is not uncommon for a case to be delayed for months until the right documents are submitted.

Submission of proper documents is not the only reason an attorney can be of assistance in your case. An attorney can also help you determine whether you are eligible for admission into the U.S. They can determine if you may be barred entry because of a prior material misrepresentation on a visa application, or if a criminal record will jeopardize your chances of receiving an immigrant visa. An attorney can help you identify potential problems and develop alternate strategies before those problems become delays, or worse, denials.

When it comes time for the interview at the USCIS or consulate, an attorney can help you prepare for the questions and address potential problems that may come up. Even without potential problems, the USCIS sometimes oversteps its procedural boundaries and asks for information that is not within the proper confines of their authority. In those cases, it is especially important to have the advice of counsel so that proper procedures are followed and the immigrant petition is not denied because of procedural error. Although you can always appeal such a denial, an appeal can take many more months and may still require you to retain an attorney to protect your rights.

Our law offices have filed hundreds of family-based petitions in every preference category for beneficiaries located around the world. In all cases, due to our comprehensive examination of the facts, thorough preparation of documents, extensive client preparation and aggressive advocacy when needed, we have been able to obtain permanent residency visas for virtually every one of our clients.

CONSULTATIONS
If you have any questions regarding your particular situation, you can schedule a consultation by contacting us at (818) 907-9688 from 9-6 Pacific Standard Time. Or by writing us by e-mail at dmk@ix.netcom.com. If you retain us on the same matter as the consultation, any consultation fees charged will be credited to your account.


top of page