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USCIS application procedures: Family Petitions

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USCIS application procedures: Family Petitions

Family Petitions

Permanent residence based on family relationships falls into two categories.

The first is immediate relatives, for which there is no quota or waiting list. Immediate relatives include unmarried children under the age of 21, spouses, and parents of United States citizens.

A child may include a legitimate child; or a stepchild, as long as the relationship was created before the child's 18th birthday; or a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, as long as the legitimization took place before the child's 18th birthday; or an illegitimate child where the benefit is sought by virtue of the relationship with the natural mother, or the natural father if the father has or had a bona-fide parent child relationship with the person; or a child adopted while under the age of 16 years if the child has been in the legal custody of, and has resided with, the adopting parent for at least 2 years; or a child who is an orphan because of the death, abandonment, disappearance, or desertion by both parents, or where the sole surviving parent is incapable of caring for the child, and the child is under the age of 16 years.

To file for a spouse, the marriage must be valid under the laws of the country where it was performed and must not be against public policy. A fraudulent or sham marriage that is entered into for the primary purpose of circumventing the United States immigration laws does not enable an alien's spouse to obtain United States immigration benefits. However, where the marriage was valid at its inception, a petition can be approved even if the parties are not residing together at the time of the interview.

To file for a parent, the United States citizen petitioner must be at least 21 years of age.

Other types of family petitions fall under the preference system. There is a limit on the number of persons who can receive permanent residence each year in these categories.
  • The first preference is for unmarried sons and daughters of United States citizens, over the age of 21.
  • The second preference is for the spouses and unmarried sons and daughters (any age) of lawful permanent residents of the United States.
  • The third preference is for the married sons and daughters of United States citizens (any age).
  • The fourth preference is for brothers and sisters of United States citizens. The United States citizen must be at least 21 years of age to file for a brother or sister.
Child Status Protection Act: On August 6, 2002, the Child Status Protection Act was signed into law. This new law addresses the problem of minor children losing their eligibility for certain United States immigration benefits as a result of US immigration processing delays. In the past, a child's eligibility to receive a visa or be part of his or her parent's application was based on the child's age at the time that the alien relative petition was approved, not the time the petition was filed. However, because of enormous backlogs and processing delays, many children turned 21 before United States immigration adjudicated the petition.

In such cases, the child would "age-out" and become ineligible to receive an immediate relative visa or would no longer be considered part of the parent's application. The child's petition would either automatically move to a lower preference category or the child would be required to submit his or her own petition, resulting in years of delays and possible ineligibility.

The new act provides that the determination of whether an unmarried alien son or daughter of a United States citizen is considered an "immediate relative child" (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I-130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the case under current law.

The new law also provides similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the first situation, the age determination will be made at the time of the parents' naturalization. In the latter, the alien beneficiary's age will be determined as of the date of his or her divorce.

For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability.

In addition, the new law provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status.

Finally, the new law provides that the family-sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized United States citizen will be converted to a petition for an unmarried son or daughter of a US citizen, unless the son or daughter elects otherwise.

Filing Procedure: A petition for permanent residence is filed on United States immigration form I-130. The United States citizen or permanent resident who files the petition is known as the petitioner, while the alien relative who will be obtaining permanent residence is known as the beneficiary. If the beneficiary is outside of the United States, he or she will apply for a permanent visa at a US consul in their home country, or in any other country where they are residing. In this situation, the petitioner must sign the form and send it, together with evidence of the relationship of the parties and the appropriate filing fee, to the United States immigration service office in the United States that handles these types of cases. The form I-130 lists the documents that must be submitted with the petition, as well as the address where the petition must be sent.

The United States immigration service center approves the petition and sends it to the National Visa Center in New Hampshire. That office will forward the next set of papers to the beneficiary. The beneficiary must then complete these forms and forward them to the United States consul that will process the case. In addition, the beneficiary must obtain the necessary documents required to be presented at the final interview. When the consulate has finished its background checks, it will send an appointment letter to the beneficiary to appear at an interview, and to bring the requested documents. If everything is in order, the beneficiary will receive his or her immigrant visa, as will any accompanying family members. They must enter the US within six months at which time their passports will be stamped as permanent residents. They will receive work permission, and their permanent resident (green) cards will be mailed to them.

If the alien beneficiary is in the United States, he or she may qualify for adjustment of status with the US immigration service, without the need of traveling to a US consulate outside of the United States. Most persons can qualify for adjustment of status if an immigrant visa petition was filed on their behalf with the United States immigration service, or an application for labor certification was filed for them with the United States Department of Labor, on or before April 30, 2001. (If the petition or application was filed after January 14, 1998, and on or before April 30, 2001, the individual will also have to show that they were physically present in the US on the date of enactment, which was December 21, 2000). However, if they are not legally in the US they will have to pay a penalty fee in order to avoid having to return to their home country. At the present time the penalty fee is $1000.00, in addition to the regular filing fees for the application, visa petition, and work permit if desired. Also, a fingerprinting fee is required. The penalty fee is not required if the applicant entered the United States legally (even if they are now illegal) and they are the immediate relative of a United States citizen, as described above.

The beneficiary will submit the application for adjustment of status together with the petition, which is signed by the petitioner. The beneficiary must also include the necessary documentation, including evidence of the relationship of the parties, a medical exam, photos, evidence of support, and the required filing fee. In addition, the beneficiary may request a work permit while waiting for a final appointment date. The procedures for each United States immigration office are different; therefore it is important that you check with the individual office to ascertain their specific method of processing these cases.

When the preliminary processing of the case is completed, the United States Immigration Service will schedule the beneficiary for an interview. During the interview, the petition and application for permanent residence will be reviewed and the parties questioned. If this is a petition based on a marriage, there is a good likelihood that the petitioner and beneficiary will be separated and asked questions outside of the presence of each other in order for the United States immigration examiner to determine the validity of the marriage. In these cases, it is very important that you take with you to the interview documentary evidence that you reside together such as tax returns, leases, ownership of property, insurance policies, etc. Naturally, if a child has been born of the marriage, you should take the child's birth certificate with you. Also, remember that the United States immigration service wants to see original documents.

If everything is in order, your application will be granted, and evidence of your permanent residence will be stamped in your passport. The resident (green) card will then be mailed to you within 3-6 months. However, since you are a permanent resident as of that date, you can travel outside of the US and you are permitted to be lawfully employed while waiting for your card to arrive.

If you are not approved for permanent residence because of the commission of a crime or because of some other ground of inadmissibility, you might still be able to obtain a waiver. If the petition is denied, and you wish to appeal, you would file your appeal with the Board of United States Immigration Appeals on US immigration form I-290 B. If your application for adjustment is denied, you could renew your application at a hearing before an United States immigration judge.

See also:
Family Relations
Fianceé (K-1) Visa
Marriage to a United States Citizen  
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