U.S. immigration law creates opportunities for certain family members of U.S. citizens and lawful permanent residence to obtain a visa to come to the United States and become permanent residents themselves.
Generally, the process involves two steps. First, the U.S. citizen or permanent resident files a visa petition for their foreign-born relative. Second, once the visa petition is granted, the foreign-born relative applies to obtain visa, either in the United States through a process called adjustment to status or overseas through consular processing. How long the process will take depends on the category that the potential immigrant falls into.
Immediate Relatives
The first category is that of an immediate relative of a U.S. citizens. Immediate relatives do not need to wait for a visa to become available, and can immigrate as soon as the petition is granted. If the immediate relative is present in the United States after having been admitted on a valid visa, it may be possible to file the visa petition and the application to adjust to status all at the same time.
Who Is an Immediate Relative?
There are three types of immediate relatives: (1) spouses of U.S. citizens; (2) minor children of U.S. citizens; and (3) parents of U.S. citizens, if the citizen is 21 years old or older.
Spouse
For spouses, the marriage must be legally recognized in the country or U.S. state where the marriage was performed. However, currently the United States will not recognize homosexual marriages, and will not permit a person to practice polygamy.
The marriage must also be bona fide, or real. A marriage entered into solely for immigration purposes is "marriage fraud." Marriage fraud will cause an alien to be permanently barred from coming to the United States. A U.S. citizen who commits marriage fraud may also face criminal charges.
Child
To be a "child" under U.S. law, the person must be under 21 years old and unmarried. A person who is divorced or widowed at the time of the filing of the petition is considered "unmarried." A child can include an adopted child. However, there are special rules surrounding adopted children. A stepchild can qualify as a child if the U.S. citizen married the parent before the child reached the age of 18.
Special issues surround a child born out of wedlock. Generally, if a child is born out of wedlock, and the U.S. citizen is the mother, proving the parent-child relationship is less problematic. But, if the U.S. citizen is the father, the father must show that he has a bona fide relationship with the child before the child reaches the age of 21. The father must be able to show that he provided support for the child, and played a role in the child's instruction and welfare.
Parent
To petition for a parent, the U.S. citizen must be at least 21 years. The U.S. citizen can petition for step-parents, if the relationship began before the U.S. citizen reached the age of 18. A parent can also include an adoptive parent, provided the adoption occurred before the U.S. citizen reached the age of 16, and the U.S. citizen lived with the adoptive parent for at least two years. An adopted U.S. citizen cannot petition for a natural parent who gave up parental rights.
Special Fiancé and Spousal Visas
There is a special petition to permit the foreign-born spouse or fiancé to come to the United States specifically to come to the United States to finish the process to become a permanent resident.
Fiancé
The fiancé of a U.S. citizen can apply for a visa to enter the United States to marry the U.S. citizen. This is called a K-1 visa. The K-1 visa lasts for 90 days, during which time the marriage must take place.
A person is eligible for a K-1 visa if:
• the person is engaged to a U.S. citizen,
• both the U.S. citizen and the alien fiancé are legally able to marry (both must be of legal age, any prior marriages must be terminated),
• the alien intends to marry the U.S. citizen after entering the United States, and
• the alien fiancé met the U.S. citizen in person within 2 years before applying for the visa (unless meeting the U.S. citizen in person will cause extreme hardship to the U.S. citizen).
To apply for the K-1 visa, the U.S. citizen first submits a visa petition on Form I-129F along with supporting documents and the correct fee. Once the petition is approved, the alien fiancé will receive an instruction packet, which will have additional forms that the fiancé must complete and a list of documents that the fiancé must obtain. The fiancé will have four months to complete the process.
When the fiancé arrives in the United States, the couple has 90 days to get married. The spouse can then file for adjustment of status, and apply for permission to work.
The alien fiancé may also apply for a visa for any unmarried children under the age 21 to accompany him or her to the United States for the wedding. The visa is called a K-2 visa.
The alien must be careful not to apply for a visitor's visa (called a B-1 visa for business people or a B-2 visa for tourists) if the alien intends to marry a U.S. citizen and stay in the United States. The U.S. Government considers this visa fraud, and it will make you inadmissible to the United States.
Foreign Spouse of a U.S. Citizen
If a U.S. citizen marries an alien while overseas, the U.S. citizen can apply for a visa to allow the spouse to enter the United States to adjust to status. This visa is called a K-3 visa. The unmarried children of the alien spouse can apply for a K-4 visa.
Preference System
For those foreign-born relatives who are not immediate relatives of U.S. citizens, the U.S. citizen or lawful permanent relative must file a visa petition on behalf of the relative. Once the visa petition is granted, the foreign-born relative must wait under the preference system until a visa becomes available before being able to immigrate to the United States.
Every year, the U.S. Congress sets aside over 400,000 visas for family members of U.S. citizens and lawful permanent residents. The five preference categories are:
1. Unmarried children of any age of a U.S. citizen
2A. Spouses and unmarried children under the age of 21 of a permanent resident
2B. Unmarried children age 21 or older of a permanent resident
3. Married children of any age of a U.S. citizen
4. Brothers and sisters of a U.S. citizen if the U.S. citizen is 21 or older
The available visas are divided among each foreign country, and each preference category every year. When any preference category from one country is filled, no more visas are available for immigrants in that preference category from that country for that year.
A person who immigrates through the preference system can bring his or her spouse and children to the United States as well. The spouse and children are called "derivative beneficiaries," and will become permanent residents once they are admitted to the United States.
The Process
First, the U.S. citizen or permanent resident files a visa petition for the foreign relative, called a Form I-130. Once the petition is approved, the foreign relative waits for a visa to become available. Availability is based on the filing date, which is called the priority date.
When the visa becomes available, the file is transferred to the National Visa Center ("NVC"). The National Visa Center contacts the petitioner to state that it is time to pay the processing fee for the visa application and affidavit of support. Once the fee is paid, the NVC issues a cover sheet, and instructs the petitioner to have the foreign-born relative to complete the DS-230 visa application and submit certain documents, such as a police certificate and birth certificate. The petitioner will also be required to submit the affidavit of support. Through the affidavit of support, the U.S. citizen or lawful permanent resident promises the U.S. Government that he or she will provide financial support to the foreign-born relative once they have come to the United States.
When all of the paperwork is in order, the NVC ill transfer the file to the consulate. An appointment will be made at the consulate for an interview. The foreign-born relative will also be required to attend a physical examination performed by a civil surgeon.
Do I Need a Lawyer?
The process may seem straight-forward. However, having an experienced lawyer on your side can make the process go smoother. The lawyer can guide you through the paperwork, make sure you have the required supporting documents, and keep up with the time lines. If a problem arises, a lawyer can step in, and guide you toward resolving the problem.
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