Family Petitions, Fiancee Visas, Permanent & Conditional Residence
Who Can Be Petitioned?
If you are an American citizen adult you can petition your spouse, parent, child under 21, single adult son or daughter, married son or daughter, or your brother or sister.
If you are a lawful permanent resident of the U.S. you can petition your spouse, child under 21, or unmarried son or daughter. You may not petition your parent, married son or daughter or your brother or sister.
A form I-130 is required to petition a family member including a spouse. If the spouse is already in the U.S., the I-130 petition is required before the spouse can adjust status to lawful permanent resident in the U.S. Spouses of U.S. citizens can adjust status to lawful permanent residence without waiting for a quota. Spouses of U.S. citizens are forgiven for expired visas or unlawful employment violations.
Documents required to petition a spouse:If you wish to immigrate a spouse, you must submit documents to prove your marital relationship. This means you must include with the petition, your marriage certificate, evidence proving the termination of any prior marriages through divorce or death, proof of your citizenship or lawful permanent resident status, the birth certificate of your spouse, and a passport photo for you the petitioner and one for your spouse.
Documents required to petition a family member:An I-130 petition can also be used to petition other family members. You must include proof of the relationship to your relative. For a child, you must include the birth certificate. Father or stepfather petitioners must also include their marriage certificate to the child’s mother. A petition for a parent must include your birth certificate, your marriage certificate if you are a woman, your parent’s birth certificate, and proof of your U.S. citizenship. A petition for a sibling must include your birth certificate and the birth certificate of your sibling.
Adopted children.You may petition adopted children provided they were legally adopted before they turned 16 years of age, regardless of how old they are now. There are special rules for children of any country that is a member of the Hague Convention. Foreign adoptions are permitted provided they comply with the law of the foreign country.
FiancesFiances of American citizens residing abroad can obtain a K-1 fiance visa to enter the U.S. to marry the Petitioner. The Petitioner must demonstrate that the couple has personally met within the last two years before filing and that there is a valid relationship. After entering the U.S. on the K-1 visa the fiance must marry the Petitioner within 90 days to be able to adjust status to lawful permanent resident as a fiance. Fiances may not adjust status through any other means than through marriage to the Petitioner. Fiance visas are useful to speed up the entry of a loved one to the U.S.
Same Sex MarriagesThe U.S. immigration system has now permitted immigration benefits to same sex couples who legally marry. The same rules for heterosexual couples apply to same sex couples.
Adjustment of status refers to the procedure for becoming a lawful permanent resident without having to leave the United States. It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad.
Adjustment of status is discussed at §245 of the Immigration and Nationality Act (“INA”). According to INA §245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:
- the alien makes an application for such adjustment,
- the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
- an immigrant visa is immediately available to him at the time his application is filed.
Inspection and Admission or ParoleBasic eligibility for adjustment of status requires the applicant’s prior inspection and admission or parole into the United States. The USCIS officer must have a “full and fair opportunity” to conduct the inspection before the alien is considered “inspected.” An alien who enters illegally or crosses the border without being inspected is generally not eligible to adjust stats.
An alien who presents himself or herself for inspection before a USCIS officer at an airport, border or seaport will be considered “inspected”. “Admission” occurs when the inspecting officer informs the applicant that the applicant is admissible and the applicant is permitted to pass through the port of entry. Generally, the alien’s I-94 and/or the USCIS stamp in the alien’s passport are proof of inspection and admission.
Parole occurs when an alien is allowed to enter the U.S. based upon a special permission granted by the USCIS or USCBP. This can be for humanitarian reasons, through an advance permission or based upon the discretion of the USCIS, or USCBP.
Immediate Availability of an Immigrant VisaAn immigrant visa must be immediately available to the alien at the time his or her application for adjustment is filed. This means that the priority date for the petition is now current. The Department of State Visa Bulletin shows the priority date for each immigrant category or quota. Spouses of U.S. citizens, parents of U.S. citizens and minor unmarried children of U.S. citizens are exempt from the quota.
Statutory Bars to Adjustment of StatusThe Immigration and Nationality Act lists several categories of aliens to whom adjustment is legally unavailable such as:
- Foreign National Crewmen – Those who, at the time of arrival, were serving in any capacity on board a vessel or aircraft or were destined to join a vessel or aircraft in the United States to serve in such a capacity.
- Transits Without Visas (“TWOV”) – Aliens who are in immediate and continuous transit through the United States to a foreign destination who lack U.S. visas.
- Aliens Who Entered Under Visa Waivers – An alien (other than an immediate relative-non quota) who was admitted as a nonimmigrant visitor without a visa under section 212(l) [visa waiver for B-1/B-2 admission to Guam] or section 217 [visa waiver program also known as WT visa].
- Aliens Who Have Conditional Residence –Aliens who were admitted for permanent resident status on a conditional basis either as spouses whose marriages are less than 2 years old at the time of admission as conditional residents or as immigrant investors (entrepreneurs), are ineligible for adjustment of status unless conditional residence is terminated.
- K-1 Fiancés – Aliens who are admitted on a temporary basis under the K-1 category for fiancés may only be adjusted based upon marriage to the U.S. fiancé petitioner. Marriage to someone other than the petitioning fiancé will not allow adjustment of status.
- Unauthorized Employment, Unlawful Status or Failure to Maintain Status – Aliens who have engaged in unauthorized employment, who are no longer in lawful status at the time of filing of the adjustment application, or who have failed to continuously maintain status since their entry into the United States are barred from adjustment of status. However, this statutory bar does not apply to immediate relatives of United States citizens or certain special immigrants.
- Aliens Who Enter Into Marriages During Pendency of Administrative or Judicial Proceedings – Any alien who marries on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto, is barred from adjustment of status unless granted a waiver or permission to adjust status. We have been very successful in having clients granted permanent residence while in deportation or removal proceedings based upon marriage to a citizen.
- Criminal Aliens – Certain aliens who have one or more felony convictions either in the U.S. or abroad or two or more misdemeanor convictions may be ineligible to adjust status in the U.S. if the crime is one considered a crime of moral turpitude-generally meaning a theft crime, fraud crime, or serious physical violence crime. If you have any convictions it is highly recommended that you seek the advice of an experienced immigration attorney before filing any documents with the USCIS.
Adjustment Under INA §245(i)Aliens in some of the above categories were previously permitted to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee pursuant to that subsection). INA §245(i) expired on April 30, 2001.
This means that eligible aliens had until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in the United States. Under the LIFE Act, INA §245(i) is available to any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that was filed on or before April 30, 2001. There is also a “physical presence” requirement. Applicants need to prove that they were actually in the United States on the date of enactment (December 21, 2000) in order to be eligible to use INA §245(i).
The INA §245(i) penalty fee is still $1,000USD, and is in addition to any other filing fees levied by USCIS. The $1,000USD fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485). If you were the beneficiary of a petition or labor certification filed before May 1, 2001, you may qualify for the benefits of Section 245(i).
Adjustment of Status is DiscretionaryIt is important to realize that adjustment of status is considered discretionary. USCIS may still deny an application for adjustment of status even where none of the statutory bars applies.
In practice, adjustment of status will be granted where the alien is statutorily eligible and there are no “negative factors.” When such negative factors exist, the factors will be weighed to determine whether adjustment will be granted. Close family relatives, particularly immediate relatives, may be a strong factor favoring adjustment.
Preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even though not resulting in fraud or willful misrepresentation, may be a sufficient negative factor to deny adjustment of status. However, immediate relatives of U.S. citizens can overcome such negative factors.
Advance Parole Required to Leave While Adjustment is PendingAn alien may apply for advance parole prior to departing the United States to ensure that his or her application is not deemed abandoned. Advance parole is available for any legitimate personal or business reason, but be careful when filing for advance parole if you are subject to an outstanding deportation order or have criminal convictions.
Ability to Work While Adjustment is PendingAn alien who has filed an application for adjustment of status may apply for an employment authorization in increments not exceeding one year during the period the application is pending (including any period when an administrative appeal or judicial review is pending). This is an unrestricted employment authorization that permits the alien to work for any employer.
The alien may continue working pursuant to his or her existing nonimmigrant status, if such status permits employment. It is advisable to obtain an unrestricted employment authorization in most cases.
Attorney David Sturman has successfully filed family petitions for over 3000 clients over the last 37 years. He will gladly answer all questions regarding the process and guide clients to a successful conclusion.
A permanent resident is given the privilege of living and working in the United States permanently. However, a person’s permanent residence status will be temporary or conditional if it is based on a marriage that was less than two years old on the day he or she was given permanent residence. A new permanent resident’s status is conditional, when based upon a recent marriage because the USCIS wants the new immigrant to prove that he or she did not get married solely to evade U.S. immigration laws.
What and When to File To Remove Conditional Residence:If you are a conditional resident, your residence will expire two years after issuance. The law states that such Conditional Residents must jointly file with their spouse, a form I-751 within the 90 days preceding the expiration date on the conditional permanent residence card.
When filing a form I-751 jointly with your spouse, you both must complete the form, sign it, and send it to the USCIS with the appropriate filing fee. It is also a good idea to attach to the petition evidence of the validity and continuing existence of your relationship such as joint tax returns, joint bank accounts, bills, joint property, or other evidence showing cohabitation.
It is very important to file the I-751 within the correct window of time, and be sure not to file it before the 90-day window. If you file it too early, the USCIS will reject the petition. If you file it after the expiration of your conditional residence, the USCIS may deny the petition and revoke your permanent residence. If this happens your residence will be terminated and the USCIS may commence removal (deportation) proceedings against you.
Remember, you will NOT be sent any reminder to file this petition from USCIS. You must make sure to calendar the expiration of your residence and file your petition in a timely manner.
How If You Are Divorced?If you are no longer married to your spouse when your conditional residence is about to expire, you still must file the form I-751, but this time you file it alone. U.S. Immigration Law permits a divorced or widowed conditional resident to self-petition for removal of conditional residence. To do so you must show:
- Proof of termination of your marriage.
- Proof of the validity of your marriage and proof with appropriate evidence that it was not entered into solely to evade immigration laws of the U.S.
How If Your Spouse Refuses to Sign the I-751?If you are still married but your spouse refuses to cooperate or you are separated but not divorced you still must file the I-751. You have several choices under these circumstances:
- File a self-petition as a married spouse and argue that you would suffer extreme hardship if the petition is not granted and you had to return to your home country. (This grounds for filing an I-751 is often difficult to prove and can result in a denial of the petition in many cases.)
- Divorce your spouse and file a self-petition as set forth above proving that the marriage was legitimate.
- File a self-petition as an abused spouse who suffered physical or mental abuse at the hands of the U.S. citizen or permanent resident spouse.
What Happens After Filing the I-751?In most cases where the couple files a joint petition to remove conditional residence, the USCIS will adjudicate the petition without an interview of the parties provided evidence is submitted proving the validity of the marriage. Processing times vary but adjudications are usually completed in six months or less.
In cases where the conditional resident files a self-petition, the adjudication process is slower and often times an interview is required to give the applicant an opportunity to prove the validity of the marriage. Sometimes these interviews can be quite involved and can take more than an hour of questioning. It is always advisable to be prepared for the interview, have your documents with you ready to present, be ready to explain why your marriage was valid and why you are divorced. An attorney is permitted to attend these interviews with the applicant and having an attorney present often makes the process less stressful and more organized.
What Happens During the Pendency of the I-751?After filing an I-751 either jointly or individually, the USCIS will promptly mail the applicant a receipt showing that his or her permanent residence has been extended during the pendency of the petition process. The applicant can have his or her passport stamped with a temporary evidence of permanent residence in order to work or travel.
What Happens if the Petition is Denied by the USCIS?Decisions by the USCIS on I-751 petitions are not appealable. This means if the petition is denied by the USCIS the only place to renew the petition is before an immigration judge while in removal (deportation proceedings.) The applicant will of course be given a chance to appear before a judge and reapply. He or she can produce whatever evidence he or she believes will prove that the marriage through which residency was received was legitimate and not a sham or fixed marriage. During these hearings, the applicant may have an attorney of his or her choice present at the applicant’s own expense. Witnesses can be called to testify and the applicant can also testify in his or her own behalf. The immigration judge has the power to reinstate the permanent residence that the USCIS denied.
It is always recommended that persons seeking removal of conditional residence be sure to do so in a timely manner and seek the advice of a competent immigration lawyer if questions or problems arise.