Among one of the most common ways of obtaining lawful permanent residence is through a family-based petition (Form I-130). A family member with U.S. citizenship or lawful permanent residence status in the United States submits a petition for a foreign national family member who seeks to obtain lawful permanent residence. The petition alone does not grant the beneficiary legal status, rather if it is approved, it only means that the Immigration Service recognizes a qualifying legal family relationship exists between the petitioner (U.S. citizen or green card holder) and beneficiary (foreign national family member). The process for individuals seeking to bring their family members to live permanently in the United States varies based on the foreign national family member’s immigration history and background as well as the petitioner’s immigration status. In some cases, it is possible to apply for a green card in the U.S. (a process known as adjustment of status). In other cases, the foreign national family member will have to, or will prefer to, complete the process abroad at a U.S. Consulate.
Applying for immigration benefits for a family member can be a difficult process to navigate due to the complexity of U.S. immigration laws and the constant changes in the process. We are here to help guide you through the entire process including analyzing your particular situation, determining the best process for you and your family members, and supporting you in the preparation, filing, and review stages of your case. We have assisted many family members including people with lengthy histories of criminal and immigration violations obtain legal permanent residency status in the U.S. Please contact us to assist you and your family member.
Filing a Family Petition
The petitioner must file a family petition (Form I-130) on behalf of a family member.
“Immediate Relatives” of U.S. Citizens.
If the petitioner is a U.S. citizen filing for an immediate relative (his or her spouse, parent, or child (under 21 years of age and not married) the foreign national family member or beneficiary will be immediately entitled to receive a green card or immigrant visa and will not have to wait for one to become available.
“Preference Categories” for all other family-based petitions
If the petitioner is a U.S. citizen filing on behalf of a son or daughter over the age of 21, a married son or daughter over the age of 21, or a brother or sister, the foreign national family member will be subject to annual immigrant visa limitations. Also, if the petitioner is a lawful permanent resident filing on behalf of a spouse or child (under age 21 and unmarried) or an unmarried son or daughter over the age of 21, the foreign national family member will be subject to annual immigrant visa limitations. These petitions are referred to as preference petitions. Upon filing a petition, the peition will be assigned a priority date. Each month a “visa bulletin” is issued listing dates of petitions that are currently being processed. Once the priority date becomes “current,” according to the visa bulletin, an immigrant visa is available to the beneficiary of the petition. Since there is more demand for immigrant visas from certain countries, Mexico, China, India, and the Philippines, there is a longer wait for an immigrant visa for a family-based preference petition.
The list with current wait times is released monthly by the U.S. Department of State and is available here. http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html.
Same Sex Spouse: Family Petitions
In the past, the Defense of Marriage Act prevented the United States government from recognizing same sex marriages. However, after the Supreme Court’s decision in June 2013, the United States and the Immigration Service now recognizes same sex marriage as long as the state or country in which the couple married legally recognizes same sex marriage. Now, same sex couples married in a location that legally recognizes same sex marriage are treated the same as any other couple who submits a family petition.
Processing within the United States: Adjustment of Status
Once an family immigrant visa petition is approved and a visa is immediately available, foreign national family member becomes eligible to apply for lawful permanent resident status. If the family member applies in the U.S., the process is called Adjustment of Status. To be eligible to adjust status to lawful permanent residency status, the applicant generally must have entered the country legally, maintained his or her status, and not have violated the terms of their status in the United States. There are certain exceptions to the legal entry and maintenance of status requirements for example, if it is a U.S. citizen spouse petitioning for their spouse and there is violation of status, or if the applicant is a direct or derivative beneficiary of a prior petition submitted on or before April 30, 2001.
If an applicant is eligible to apply for adjustment of status, the applicant will first submit his or her applications to the Immigration Service with the applicable fees and evidence of eligibility. The applications must include a sealed medical examination from a designated civil surgeon and a completed affidavit of support (Form I-864) from the petitioner with evidence of financial ability to support the beneficiary. Depending on the nature of the case, additional documentation will be required to demonstrate eligibility.
Once an adjustment of status application is filed an applicant may not depart the U.S. unless he or she first obtains permission to travel or an advance parole document. An application for advance parole can be filed initially with the adjustment application or after the application is filed. In some case, travel abroad while an adjustment of status application is not recommended. While an adjustment of application is pending review, the applicant can apply for an obtain permission to work in the U.S.
After the application is filed, the applicant will be required to attend a biometrics appointment (fingerprint and photograph) and attend an interview. In some cases, the petitioner will be required to attend the interview with the applicant. At the interview a Information Services Officer (ISO) of U.S. Citizenship and Immigration Services will interview the petitioner and beneficiary regarding their family relationship and question the beneficiary as to his or her eligibility for adjustment of status.
Every applicant applying for adjustment of status must prove that he or she is admissible to the U.S. There are many different grounds of inadmissibility but the most common ones include criminal or immigration violations, he or she may be inadmissible to the U.S. If a person is inadmissible, he or she may be eligible to apply for a waiver of inadmissibility.
Before applying to adjust status, a person with criminal convictions or previous immigration violations (such as living in the U.S. unlawfully, using a fake document to enter the U.S., falsely claiming U.S. citizenship, or suffering a deportation or voluntary departure) should consult with a qualified immigration attorney to determine if he or she is eligible to adjust status with a waiver of inadmissibility. If a person applies and is not eligible, U.S. Citizenship and Immigration Services will deny the case may refer the case to Immigration and Customs Enforcement for deportation. It is important to understand the risks of applying for immigration benefits if you have criminal convictions or have committed immigration violations.
At Stephanie Alcala Law Offices, APC., we have successfully assisted many family members with applying for adjustment of status in various cities through the U.S. Where necessary, we have also successfully filed and processed waivers of inadmissibility, including fraud and misrepresentation, criminal conviction, unlawful presence, and deportation waivers. If you need assistance, please contact us.
Processing at a U.S. Consulate Abroad
If the beneficiary is not present in the United States, or is not eligible for adjustment of status, he or she will have to apply for an immigrant visa at a U.S. Consulate. This process is called consular processing. The U.S. citizen or lawful permanent resident petitioner first files the immigrant visa petition (I-130) and after it is approved and an immigrant visa is available the petition is forwarded to the National Visa Center. At this stage, immigrant visa fees, applications, and other documentation pertaining to the applicant are submitted. Once processing at the National Visa Center is complete, an immigrant visa interview is scheduled at the U.S. Consulate in the beneficiary’s country of legal residence. Prior to the interview, the applicant will be required to undergo a medical examination before a qualified panel physician and a background check (fingerprint appointment). At the immigrant visa interview, the applicant will be asked interviewed by a consular officer who will determine if the applicant is eligible for an immigrant visa.
If the consular officer determines the applicant is ineligible for an immigrant visa, the consulate officer is required to provide the reasons for denial. Often the consulate officer determines the applicant is inadmissible to U.S. on the basis of medical grounds, criminal convictions, or immigration violations. The consulate officer is also required to determine if a person is eligible to apply for a waiver of inadmissibility, a kind of pardon.
The applicant will be required to apply for and obtain a grant of a waiver of inadmissibility before the immigrant visa will be issued. There are different kinds of waiver of inadmissibility but usually the applicant must prove that his or her qualifying relative will suffer extreme hardship.
Extreme hardship is a legal standard. Basically, the applicant must demonstrate that his or her qualifying relative cannot reside in the applicant’s native country for various reasons and that the qualifying relative cannot live without the applicant in the U.S. for various reasons. According to caselaw, common or typical results that may occur if the applicant is not allowed to return to the U.S. will not meet the hardship standard, but if all the results are considered in the aggregate, the applicant may meet the “extreme hardship” standard. Usually, it is not sufficient to write a letter explaining why your qualifying relative will suffer hardship, rather, additional evidence or documentation establishing the veracity of the relative’s claims of hardship needs to be collected and submitted. Applying for a waiver of inadmissibility is challenging. You need a dedicated attorney on your side who is willing to help you prepare your applications, organize and gather evidence, and prepare legal arguments which demonstrate to the Immigration Service that you qualify for a waiver of inadmissibility. To determine your eligibility for a waiver of inadmissibility, please contact us for a consultation.
If your waiver was denied, you may appeal or re-file. Often, it is better to re-file due to long appeal processing times. At Stephanie Alcala Law Offices, APC., we have successfully represented many clients in the re-filing of a waiver of inadmissibility, so please do not give up or lose hope. Instead, contact us for assistance.
Provisional Waivers (Form I-601A)
Many waivers of inadmissibility which are submitted in conjunction with the consular processing of an immigrant visa are processed while the relative awaits a decision outside the country. This means many families face prolonged separation while waiting for a decision that can take months and even over a year. The provisional waiver was introduced on March 4, 2013 and an expansion was introduced in August of 2016 as a way to reduce or prevent long-term family separation.
Only certain types of waivers can be submitted under the provisional waiver process. Specifically, only a person who is found to have accumulated unlawful presence will be to apply for a waiver under this new process. If there are criminal convictions, multiple unlawful entries into the United States, prior denials of entry into the U.S., prior visa denials, or other grounds that could render a person inadmissible, the provisional waiver will not be available.
- You must be at least 17 years or older. If you are under the age of 18, you may not require a waiver for unlawful presence.
- You must be a spouse, child, or parent of a U.S. citizen.
- You must have an approved I-130 petition or I-360 petition. This a petition that your relative filed on your behalf or you filed on your own because you are a victim of domestic violence or you are a widow.
- Before you apply, you must have a pending immigrant visa case.
- You must demonstrate that if you are not allowed to return to the U.S. as a lawful permanent resident that your U.S. citizen spouse or parent will suffer extreme hardship.
- You must be physically present in the United States to file your application for a provisional unlawful presence waiver and attend a fingerprint/photograph appointment.
- You cannot have been scheduled for an immigrant visa interview by before January 3, 2013.
If the Immigration Service determines that there is a “reason to believe” that the applicant will be found inadmissible, they may deny the provisional waiver. This is particularly true of individuals with criminal histories. There are exceptions for certain criminal offenses such as if it is a “petty offense” or “youthful offenders.” Only a professional may be able to review each particular case to determine whether such exceptions may apply. Many crimes may not render a person inadmissible, however, if the applicant has any record at all it is crucial to have the case reviewed by a licensed immigration attorney to determine whether the criminal record is such that it falls within an exception to a criminal ground of inadmissibility. An immigration attorney will also be able to review the criminal record and determine what evidence should or should not be submitted to ensure the highest possibility of success with the waiver.
If the applicant is in removal proceedings, he or she must file to terminate his or her case with the immigration court before they are able to proceed with filing the I-601A. Termination of proceedings is a specific procedure and not the same as simply accepting a voluntary departure. Given the complexity of court proceedings, it is important that the applicant for the waiver at least consult with an attorney before taking any steps to terminate the court proceedings or seeking the waiver.
At Stephanie Alcala Law Offices, APC., we have successfully assisted many family members with applying for an immigrant visa at many U.S. Consulates and Embassies throughout the world. We have also successfully assisted applicants with applying for and obtaining a grant of his or her waiver(s) of inadmissibility. We are dedicated to helping you and your family member obtain legal permanent residency status.
Specifically, we conduct in-depth interviews with you and your family member to understand your particular situation. We also take the time to carefully document the various kinds of hardship you will face if you and your family member are forced to live in different countries. Every family situation is unique. You need an attorney who will take the time to listen and understand your circumstances. At Stephanie Alcala Law Offices, APC., we understand the risks at stake. We are committed to helping your relative return to the U.S. as quickly as possible. Please contact us for a consultation.
Conditional Residency and Petition to Remove the Conditions
Since many people abuse the system and commit marriage fraud (marry another for a green card), U.S. immigration laws are stricter in some marriage cases. If the marriage is less than two (2) years at the time the adjustment of status application is granted, or when the person enters the U.S. with an immigrant visa, the beneficiary applicant will receive conditional permanent residency status. The conditional residents enjoy the same benefits as lawful permanent residents, but their status is only valid for two (2) years. To remove the conditions and obtain lawful permanent residency status, the petitioner and beneficiary must file a joint petition with evidence proving their marriage is bona fide or valid. Failure to timely file the petition will result in automatic termination of legal immigration status. If the marriage ended in divorce, or if the petitioner physically and/or emotionally abused the beneficiary, the beneficiary can file a petition to remove the conditions without the petitioner spouse. Also, if the deportation of the beneficiary will result in extreme hardship, the beneficiary may apply to remove the conditions without the petitioner spouse.
Termination of a Petition – Form I-130, Immigrant Visa Petition
Sometimes a petition will terminate by operation of law. This means that upon the occurrence of some event the family visa petition will terminate, and no longer be valid.
Termination of a marriage based petition occurs upon divorce, death of the petitioner, or failure of the petitioner to register with the consulate (applies only to consular processing cases).
Where the petition was filed by a U.S. citizen or lawful permanent resident spouse for a foreign national spouse, if the couple divorces prior to the adjudication of the the immigrant visa or adjustment of status application, the petition is no longer valid. The only exception to this is in certain circumstances where there is extreme cruelty or battery by the petitioning spouse.
Death of the Petitioner
The death of the petition also traditionally terminated the petition. Under current law, the petition may not automatically terminate. Pursuant to section 204(l) of the Immigration and nationality Act, the I-130 petition will remain valid despite the death of the petitioner when the following requirements are met:
- Resided in the United States when the qualifying relative died;
- Continues to reside in the United States on the date of the decision on the pending petition or application; and Is at least one of the following
- The beneficiary of a pending or approved immediate relative visa petition.
- The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries.
- Any derivative beneficiary of a pending or approved employment-based visa petition.
- The beneficiary of a pending or approved Form-730, Refugee/Asylee Relative Petition;
- An alien admitted as a derivative “T” or “U” nonimmigrant; or
- A derivative asylee under section 208(b)(3) of the Act.
It is important to keep in mind that there are certain situations in which an affidavit of support must be filed by a substitute sponsor as a result of the petitioner’s death. There are other specific issues that come up frequently where the petitioner has passed away. So, before any applications are filed with filing fees it is prudent to have the case reviewed by a qualified immigration attorney to determine the best course of action.
Consulate Process Termination
Where there is an approved petition and an immigrant visa is available, the National Visa Center will send the petitioner or choice of agent notice that a visa is available. If the National Visa Center does not receive any response from the beneficiary, the beneficiary’s registration will be terminated. So it is extremely important to update the petitioner/choice of agent’s address with the National Visa Center each time there is a change in address, otherwise the notice may be sent and to the wrong address the petition may be terminated. The only exception to rule is if the failure to respond was due to circumstances beyond the beneficiary’s control. Within two years of the notification being sent, the beneficiary can request reinstatement of the petition. The advantage of hiring an attorney to assist you s that the attorney will be your designated choice of agent and will receive all correspondence so you do not have to worry about early termination of a petition. Contact us for help.
Appeals and Processes after a Denial
If the immigrant visa petition is denied, the petitioner may appeal the decision within 30 days of receipt of the decision to the Board of Immigration Appeals (BIA).
If an adjustment of status application is denied, it is not appealable, but the applicant may request to have an Immigration Judge review the application. It is also possible to request that the Service reopen the denied application and/or reconsider its decision to deny. Motions to reopen and/or reconsider generally must be filed within 30 days of the decision. For a motion to reopen, the applicant must state new facts and the motion must be supported with declarations and other documentary evidence. For a motion to reconsider, the applicant must state reasons for reconsideration and include any citations to relevant law. If your or your family member’s adjustment of status application was denied, please contact us for a consultation to determine the next best course of action.
Generally speaking, it is not possible to appeal the denial of an immigrant visa by a U.S. Consulate or Embassy due to the legal doctrine of consular nonreviewability. In certain cases, the applicant may request review of the decision through the Department of State’s Visa Office. This process is called an advisory opinion. You need an attorney to submit a request for an advisory opinion to the Visa Office. If you or your family member was denied an immigrant visa at a U.S. Consulate or Embassy, please contact us for a consultation.