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We handle the following types of Immigration For Families:

• Adjustment of Status
• Consular Processing
• Fiancé Visas (K-1 and K-2)
• Violence Against Women Act (VAWA)
• Immigration Through Adoption
• Deferred Action for Childhood Arrivals (DACA)
• Conditional Resident Status

In family immigration beneficiaries (persons seeking a green card or immigrant visa) are divided into immediate relatives and preference beneficiaries.

Immediate relatives are parents of a U.S. citizen child who is 21 years or older, spouses of U.S. citizens, and unmarried children under 21 years of a U.S. citizen parent. A U.S. citizen is referred to as a USC, and a lawful permanent resident is referred to as LPR.

Preference relatives are unmarried sons or daughters over 21 years of a U.S. citizen or permanent resident parent; married sons or daughters of a U. S. citizen parent; brothers and sisters of a U. S. citizen; and unmarried children or spouses of a permanent resident.

The main difference between immediate relatives and preference relatives is, that immediate relatives do not have to wait on a visa to become available because visas are always available for immediate relatives whereas preference relatives have to wait on visas to become available in their preference category.

Obtaining a green card or immigrant visa through a family member requires two steps.

A U.S. citizen is referred to as a USC and a lawful permanent resident is referred to as LPR.

Step One:

The USC or LPR must file a petition with the United States Citizenship and Immigration Services (USCIS) and prove the claimed family relationship such as spouse, parent, child, or sibling to the beneficiary.

Step Two:

Adjustment of Status

The next step is for the beneficiary to apply to adjust status in the United States, if eligible, to obtain a green card.

In the adjustment of status cases, the petition and adjustment of status application are usually filed concurrently but there are cases in which the petition is filed first, and after it is approved the adjustment of status application is filed.

Adjustment of status is discretionary. This means the adjudicator can deny the application even though the person meets the basic eligibility requirements.

What is an adjustment of status?

Adjusting status in the United States means changing your status to become a permanent resident without leaving the United States.

The following persons can adjust their status in the United States if they can show that:

1. They were inspected and admitted or paroled.
2. A visa is immediately available unless they are immediate relatives. Visas are always available for immediate relatives.
3. They never worked without employment authorization unless they are immediate relatives.
4. They are in valid immigration status unless they are immediate relatives.
5. They were not admitted as an alien crew member, an alien admitted in transit without a visa, or admitted on a J visa unless exempted from the two years foreign residency requirement. Certain J visa holders may be eligible to apply for a waiver.
6. They were not admitted under the visa waiver program unless they are an immediate relative.
7. If admitted on a K-1 visa, they are adjusting their status based on a marriage to the K-1 petitioner.
8. They are not inadmissible, if inadmissible are entitled to a waiver of the ground of inadmissibility.

Sometimes if eligible they can adjust under INA § 245(i). In this case, they have to pay a penalty fee of $1,000.00.

Eligibility requirements for a spouse of a USC or LPR to adjust status.

The spouse of a U.S. citizen (or of an LPR if eligible) can apply to adjust status if:

• The marriage is valid under the laws of the state or country where it took place;
• The marriage is bona fide and not a fake or bogus marriage just for a green card. The petitioner must prove the bona fide of the marriage by a preponderance of the evidence. USCIS scrutinizes all marriages but those with red flags are subject to enhanced scrutiny.

• The spouse beneficiary is not inadmissible including medical grounds of inadmissibility. There are many grounds for inadmissibility. If inadmissible is entitled to a waiver of the ground of inadmissibility.

• The spouse beneficiary is not likely to become a public charge;
• The spouse beneficiary was inspected and admitted or paroled, and
• The spouse beneficiary merits a favorable exercise of discretion.

Eligibility requirements for other beneficiaries such as parents and children of USCs:

• The petitioner must prove the claimed relationship by documentary evidence such as parent/child.
• The beneficiary is not inadmissible including medical grounds of inadmissibility. There are many grounds for inadmissibility. If inadmissible is entitled to a waiver of the ground of inadmissibility.

• The beneficiary is not likely to become a public charge;
• The beneficiary was inspected and admitted or paroled,
• The beneficiary merits a favorable exercise of discretion.

Consular Processing.

In every case the U.S. citizen or permanent resident petitioner must file a petition for the beneficiary. When the petition is approved, USCIS will forward the petition to the National Visa Center (NVC) to commence visa processing if the beneficiary is residing abroad.

The petitioner has to pay certain fees after the petitioner is notified by NVC to do so. After the fees are paid the spouse beneficiary has to apply for an immigrant visa and submit certain civil documents. The petitioner is also required to submit certain civil documents.

Eligibility requirements for spouses of USCs or LPRs.

Petition Process.

The petitioner (person filing the petition) must prove:

• That the marriage is valid marriage according to the laws of the state or country where it took place;
• That the marriage is bona fide and not fake or bogus. The petitioner must prove the bona fide of the by a preponderance of the evidence.

Visa Process:

After the petition is approved, USCIS will send the petition to the National Visa Center for visa processing. A spouse beneficiary who is not an immediate relative can only apply for an immigrant visa when a visa becomes available. Immediate relative spouses can apply for a visa after the petitioner pays the visa application and affidavit of support fees.

• The spouse beneficiary cannot be inadmissible. There are many grounds for inadmissibility including medical grounds inadmissibility. If inadmissible is entitled to a waiver of the ground of inadmissibility.
• The beneficiary is not likely to become a public charge;

During this process, the beneficiary must submit certain documents to the National Visa Center. When the application is complete and all required fees are paid and documents submitted, NVC will schedule an interview and inform the beneficiary and his or her attorney.

The beneficiary has to attend the interview and if a visa is granted travel to the US before the visa expires.

Eligibility requirements for other beneficiaries.

Petition Process.

The petitioner files a petition and proves:

• The petitioner must prove the claimed relationship such as parent/child or brother/sister by documentary evidence.

Visa Process.

The beneficiary applies for an immigrant visa and proves that:

• The beneficiary is not inadmissible including medical grounds of inadmissibility. There are many grounds for inadmissibility. If inadmissible is entitled to a waiver of the ground of inadmissibility.

• The beneficiary is not likely to become a public charge;

During this process, the beneficiary must submit certain documents to the National Visa Center. When the application is complete and all required fees are paid and documents submitted, NVC will schedule an interview and inform the beneficiary and his or her attorney.

The beneficiary has to attend the interview and if a visa is granted travel to the US before the visa expires.

Fiancés Visas-K-1 and K-2

The petitioner files a petition with USCIS for the foreign fiancée. The petitioner must be a USC. The following requirements must be satisfied for USCIS to approve the petition.

• The petitioner is a USC;
• The petitioner is at least 18 years;
• That each party is free to marry;
• That the petitioner and foreign fiancée intend to marry each other within 90 days of the foreign fiancée being admitted to the US;
• That the petitioner and foreign fiancé have met in person within the past 2 years unless the parties qualify for and obtain a waiver of the meeting requirement;

Unmarried children of the foreign fiancé who were granted a K-1 visa are entitled to K-2 visas to accompany or follow to join the foreign fiancée parent.

Adjustment of Status by Foreign Spouse After marriage.

If the parties marry within 90 days, the foreign spouse who obtained the K-1 visa must apply for adjustment of status and follow the procedure and requirements to obtain permanent residence.

Adjustment of Status by K-2 visa holders.

After the parent has been married all K-2 visa holders are entitled to adjust their status even if the K2 visa holder was over 21 years when the adjustment application was adjudicated provided that the K-2 visa holder entered the US before turning 21. It does not matter if the parent’s marriage was after the K-2 was 18 years. The K-2 visa holder must follow the adjustment of the status procedure.

VAWA-Violence Against Women Act.

Certain abused spouses, parents, or children of U.S. citizens or permanent residents can self-petition for permanent residence.

Except for immediate relatives, obtaining lawful permanent residence is a two-step process. First, the abused self-petitioner must file the self-petition. Second, when the petition is approved the self-petitioner must wait until a visa becomes current based on the self-petitioner’s priority date in his or her preference classification. Once the petition is approved, the self-petitioner can remain in the US and can get a work permit, advance parole, and public assistance if needed while waiting to file the adjustment of status application which can take years before a visa becomes available.

Immediate relatives can file both the self-petition and the adjustment of status application concurrently.

In order to adjust status, the self-petitioner must prove that he/she is not inadmissible. A few grounds of inadmissibility do not apply to self-petitioners and some can be waived if the self-petitioner is eligible.

Persons who can self-petition:

• Abused spouses of USC or LPR;
• Spouses of USC or LPRs whose children were abused by the USC or LPR spouse;
• Abused children of USC or LPR;
• Abused parents of USC children;
• Abused intended spouses of USC or LPR where the marriage is invalid due to bigamy by the USC or LPR.

Self-petitioning spouses or intended spouses of USC or LPR must prove the following:

• Good moral character;

• Marriage to the USC or LPR;
• Marriage was in good faith or intended marriage was in good faith;
• During the marriage the, the foreign national spouse or his/her child was battered by or subject to extreme cruelty by the USC or LPR spouse;
• The spouse resides or resided in the US with the USC or LPR spouse;
• The self-petitioning spouse resides in the US and the USC or LPR battered or subjected the foreign spouse or child to extreme cruelty in the US or is living abroad because the abusive spouse is an employee of the U.S. government or a member of the US armed forces;

The self-petitioning foreign national child of an abusive or LPR must prove:

• Good moral character (children under 14 are presumed to have good moral character)
• A parent-child relationship with the abused USC or LPR parent;
• The child resides or has resided with the abusive USC or LPR parent;
• Was battered or subjected to extreme cruelty by the USC or LPR parent;
• Is residing in the US or if living abroad was abused by the USC or LPR in the US or the abusive USC or LPR is a member of the US armed forces or an employee of the US government;

The self-petitioning parent of an abusive USC child must prove:

• Good moral character;
• The parent-child relationship includes step-parents or adoptive parents)
• The abusive USC child must be 21;
• The self-petitioning parent resides or resided with the USC son or daughter;
• Was battered or subject to extreme cruelty by the USC son or daughter.

If USCIS makes a prima facie determination that the self-petitioner was abused, he/ she can apply for work permit and/or welfare if needed. If the petition is approved and the self-petitioner is an immediate relative in the US, he/she can apply to adjust status. A preference beneficiary who is in the US will have to wait until a visa becomes available in his/her preference category before he/she can apply for adjustment of status.

If the self-petitioner resides abroad when the petition is approved USCIS will send the approved petition to NVC for visa processing. If the self-petitioner is an immediate relative, NVC will commence visa processing immediately but if the self-petitioner is a preference relative, the self-petitioner will have to wait until a visa becomes available to begin visa processing.

Immigration Through Adoptions.

Adopted children can immigrate through the Hague Convention (Hague Adoptions), orphan adoptions (Non-Hague Adoptions), or regular adoptions. These are adoptions that occur outside the United States because the child to be adopted is residing abroad.

These adoptions are not the same as stateside adoptions within the United States when the child is physically present in the United States.

Each form of adoption has its own eligibility requirements and procedure which must be followed by the prospective adoptive parent (person who is seeking to adopt the child).

Deferred Action for Childhood Arrivals (DACA)

DACA was created by President Obama to provide immigration relief from deportation for certain young people who were physically present in the United States on June 15, 2012, were under the age of 16 on that date, and in unlawful immigration status by entering illegally or staying beyond their authorized time.

The young person must have graduated from high school or obtained a GED certificate or honorably discharged from the U.S. armed forces or the U.S. Coast Guard.

Certain criminal convictions are a bar to obtaining DACA such as for an aggravated felony, significant misdemeanor, or three or more non-significant misdemeanors. There are certain exceptions to the criminal bars such as minor traffic offenses and juvenile delinquency which in reality are not convictions. Expunged convictions are not a bar to DACA.

DACA is discretionary and is issued for two-year periods and can be renewed but no new applications can be filed at this time for an initial grant of DACA.

Conditional Resident Status.

A spouse who obtains a green card on a date when the marriage was less than two years is granted conditional resident status. In this case, the spouses must file a joint petition within 90 days prior to the date the conditional resident status will expire unless the conditional resident spouse qualifies for filing a waiver petition.

A conditional resident spouse who cannot file a joint petition with the other spouse can file a waiver petition under one or more of the waiver grounds if eligible. A waiver petition can be filed before the 90 days window.

The conditional resident must prove the marriage was entered in good faith to successfully remove the conditions on residence to obtain lawful permanent residence. In a waiver petition, if the other spouse died, the marriage is presumed to be in good faith.

If the petition is denied, the conditional resident has several options. He/she can file a new petition, a motion to reopen or reconsider, or if placed in removal proceedings, ask the immigration judge to review the petition and evidence de novo.

When USCIS denies a petition to remove conditions on residence, it revokes the conditional resident status and invariably issues a notice to appear in immigration court in a removal proceeding.

The conditional residence status will be automatically revoked if the petition to remove the conditions on residence is not filed by the date the conditional resident status expires.

The conditional resident may file a late petition to remove the conditions on residence on a showing of “good cause.” Good cause is not defined but is determined on a case-by-case basis. USCIS’s current policy has recognized certain events as good causes, such as hospitalization, grieving for a loved one, legal or financial problems, serious family emergency, work commitment, and having a family member on active duty in the U.S. armed forces. Other circumstances could amount to good cause depending on what it is but not remembering to file on time is not good cause.

If the conditional resident is put in a removal proceeding for not filing, he/she should still file the petition late and request a continuance of the case until USCIS makes a decision on the petition.

Petitioning to remove conditions on residence should not be treated lightly as it is a very important step to obtain lawful permanent resident status.

Call 561-847-4798 to set up a consultation for us to evaluate your immigration case. Our experienced immigration attorney will examine your situation, the applicable immigration laws, how he can help you, and the likelihood of success.