Historically, family-based immigration and family reunification immigration received favored status under US immigration laws. The Immigration and Nationality Act allows for close relatives of US citizens and legal permanent residents to immigrate to the US. The ease and speed in which this can be accomplished depends on the relationship of the family members, whether the sponsor is a US citizen or a Lawful Permanent Resident (LPR) and, sometimes, the country where the family member is located.
Preliminarily, family immigration law as stipulated in the Immigration and Nationality Act (INA) creates two groups for family members: immediate relatives and family-based preference categories.
In the “immediate relative” category of family-sponsored immigration, the petitioner must be a US citizen (not an LPR) and the eligible family members include the following:
- Spouse of US citizens
- Unmarried minor (under 21) children of US citizens
- Parents of US citizens over age 21
Procedurally, the “immediate relative” category has advantages over the preference categories. There are no caps or quotas on the number of visas available each year. Further, if they entered the US legally, “immediate relatives” are exempt from certain “bars”, such as unauthorized employment, overstaying their time of admission, or violating their specific non-immigrant status.
On the other hand, spouses and children of immediate relative immigrants – unlike those of preference aliens – do not obtain “derivative” status. In other words, under family immigration to the USA, if a person immigrates as an “immediate relative” parent of a US citizen, that person’s spouse or minor children would not also automatically qualify for immigration visas, whereas a spouse or minor child of a preference alien would automatically be eligible. As such, the sponsoring US citizen must file separate petitions for each beneficiary.
Family-based priority categories
The family members who don’t fall into the “immediate relative” classification will be subject to numerical limitations, which vary depending on which of the preference categories (described below) applies. Numerical Limitation means there are a certain number of green cards allocated each year to those types of family-based immigration cases. For example, each year only 23,400 unmarried adult (21 or older) children of US citizens can become permanent residents based on their US citizen parents’ petitions. Since there are many more applicants than this number, there is a queue or waiting list. Each family-based immigration priority case has a place in that waiting list, which is determined by the date when the case was filed, known as the “Priority Date”. The applicant must continuously track his or her place in the queue, so that when their date comes up, i.e. the “Priority Date” becomes current, they can file the necessary forms and documents to become permanent residents. To help track those priority dates, the US Department of State publishes a monthly Visa Bulletin, which shows the dates on which the beneficiary can file papers to obtain an immigrant visa or to adjust his/her status.
Conditional permanent residence for spouses (Marriage Green Card)
If you obtained a green card based on your marriage to a US citizen, you will most likely receive a so-called “conditional permanent resident” card (unless you have been married to your US citizen spouse for more than two years at the time your green card is approved). A conditional green card is only valid for two years. Within 90 days before your conditional card expires, you must – under family immigration law – file Form I-751 with the United Citizenship and Immigration Services (USCIS) to remove conditions on your permanent residence and obtain a permanent green card that is not tied to your marriage and is valid for 10 years.
Under normal circumstances with family-based immigration, you and your US citizen spouse must sign the petition together and submit additional evidence to prove that you are still married and have been living together for the last two years. However, in some cases, by the time you have to apply to remove conditions on your residence, you may be separated or even divorced from your US citizen spouse. If you are separated but not divorced, you may still file the petition together with your US citizen spouse.
However, under family immigration law, it is crucial that you answer all questions on the application truthfully and disclose that you are living apart. If an interview is scheduled, your spouse must appear with you. If you are separated because you will be divorced, you need to file without your US citizen spouse, mark in the application that you are “divorced”, and clearly disclose in an addendum that you are separated but not divorced. USCIS will accept your case and issue a receipt, which will automatically extend your green card for one year. When the USCIS officer eventually reviews your case, he or she will see that, at the time of filing your petition, you were separated but not divorced. Therefore, assuming that you got divorced within the time between filing and the time when the officer begins reviewing your case (usually 10-18 months), the officer will send you a request for evidence (RFE) asking for the divorce certificate or decree. The officer will give you 87 days to respond. If you did get divorced by then, you would submit a copy of the divorce decree. If your divorce is still pending and the deadline for the RFE is close, you must send the response explaining the delay and asking for additional time. The USCIS may give you additional time, send you a notice of intent to deny (NOID) giving you additional 87 days, or outright deny your case, but allowing you to refile.
If you are divorced, under family immigration law, you may apply for a waiver of the joint filing requirement based on your divorce. In that case, you do not have to wait until 90 days before the expiration of your conditional card; you can file as soon as you have your final divorce decree. A separation or divorce within the first two years of your permanent residency creates a presumption that your marriage was questionable, meaning that you got married just to receive a green card. You can overcome this presumption by submitting many documents to show that your marriage to the US citizen sponsor was real. It is important to hire an experienced family immigration lawyer who can advise you on the documents you can provide and help you organize and prepare the application. Attorneys at I.S. Law Firm have helped many clients receive their permanent green cards even after divorce from their US citizen spouses.
If you are not divorced yet, but you are not on good terms with your US citizen spouse, you can still apply for a waiver of joint filing requirement. Family immigration law requires that you submit as many documents as possible to prove that your marriage was genuine and that you and your spouse did live together at some point. You will also have to provide a copy of your final divorce decree at the request of USCIS. A waiver of joint filing requirement cannot be approved without a divorce decree, except in cases where the immigrant was abused by his or her US citizen spouse. A good family immigration lawyer will advise you on the best timing to file your petition, so that you have enough time to obtain your divorce and provide confirmation to USCIS to avoid a denial of your application.
Sometimes, your circumstances may change while your family-sponsored immigration petition is pending with USCIS. For example, you may have applied for your permanent green card together with your spouse, but you got divorced while USCIS was processing your application. Or, for example, USCIS may have requested more evidence to process your jointly filed petition, but by the time you receive the request for evidence, you may have separated from your spouse. You should consult with an experienced family immigration lawyer about the best strategy and to make sure that your actions will not be considered misrepresentation by USCIS, which may result in your petition denial, deportation, or complications when you apply for any future immigration benefits such as naturalization or sponsoring your relatives.
If you have been abused by your US citizen spouse, you can apply for a permanent green card by yourself, without a divorce decree, and without waiting until 90 days before the expiration of your conditional card. You will have to submit extensive proof of your good-faith valid marriage with the abusive spouse as well as ample evidence of abuse. You should work with a family immigration lawyer who will guide you through the process and help you prepare your petition in the best possible way.
With family-based immigration, children who obtain status as either a “child” or “stepchild” based upon marriage of less than two years are also conditional residents and must file to have their conditional status removed. Where the parent is also a conditional resident, the parent can include the child in his or her application.
Affidavit of support
A legally enforceable Affidavit of Support (Form I-864) must be filed by US citizens and LPRs who sponsor family members as immigrants. The law requires the sponsor to demonstrate an income level at or above 125 percent of the federally established poverty line for the sponsor’s household size, which also includes the intended immigrant.
If the sponsor’s household income does not meet the income requirements, evidence of assets, such as cash in savings accounts, stocks, bonds, or property, may be considered in determining the sponsor’s ability to support the immigrant. If the sponsor cannot meet the required income level based on income and assets, another person may serve as a joint sponsor.
Attorneys at I.S. Law Firm have facilitated family reunification immigration and family-based migration and helped many immigrants obtain permanent residency in the US, including in very complicated cases involving separation, divorce, and spousal abuse. To learn more about our services and for consultation please contact us at +1-703-527-1779 or via e-mail: [email protected]