US Immigration Laws
By Maury Beaulier
I. Understanding Family Based Petitions
Family-based petitioner are limited by statute to
a certain number of persons each year. In recent
years, the number of immigrants allowed under family
sponsorship was 480,000 per year. There are two main
categories for family-based immigrant visas:
immediate relative of a U.S. citizen; or under one
of four preference immigrant visas. There is no cap
on the number of visas allowed under the "immediate
relative" category. However, the number of immediate
relatives are subtracted from the 480,000 cap on
family-based immigration to determine the number of
other family-based immigrants to be admitted in the
following year. If an applicant does not qualify as
an immediate relative, they may apply under one of
four categories ranked in order of preference. Since
numerical caps apply to these categories, visa
petitions are ranked chronologically based on a
"first come - first serve basis." Because of the
numerical cap, there are long waiting periods to
obtain a visa in most of the family-based immigrant
categories. The date of the application is called a
priority date. The type of visa category applicable
to an intending immigrant in the four available
areas of preference depends upon two factors:
whether the person sponsoring the immigrant is a
U.S. citizen or a lawful permanent resident and; the
closeness and dependency of the relationship between
the immigrant and the United States relative.
II. Who is a United States Citizen?
Generally speaking, any person born in the United
States has a claim to U.S. citizenship. Persons born
in countries other than the U.S. may have a claim,
under United States law, to U.S. nationality if
either parent was born or naturalized in the U.S.,
or either parent was a U.S. citizen at the time of
applicant's birth. However, it is important to
remember to confirm your citizenship with a consular
office before filing a family based petition.
Moreover, you should wait until your visa petition
has been approved before acting in reliance on it.
All to often, an applicant will make any final
travel arrangements, dispose of assets, or leave
existing jobs only to discover that their petition
has been denied.
III. Non-Preference:
Immediate Relatives Immediate Relatives may
immigrate to the United States on a family based
petition. This is the most attractive category since
there is no limitation to the number of immigrants
who may qualify under this category and, in most
cases, visa numbers are immediately available for
these individuals to apply for lawful permanent
residence. Immediate Relatives include spouses,
children and parents of U.S. citizens. However, some
additional definitions and clarifications are
required: Age of Citizen: A US citizen must be at
least 21 years of age in order to sponsor his or her
parents. "Child" Defined: Children are defined as
natural-born (legitimate), adopted, step-children,
or legitimated. Widows and Widowers: A Widow or a
widower of a US citizen qualifies under this
category so long as the person submits a petition
within two years death of their spouse and a
remarriage has not occurred Petitioning Parents:. In
order for a parent to petition for a child, the
child must be unmarried and under the age of 21 to
qualify. Petitioning Children: In order for a child
to petition for their parent, the child must be at
least 21 years of age. Petitioning Spouses: If a
couple has been married less than two years at the
time the visa application is submitted to the INS,
the immigrant will be granted a two-year period of
"conditional residence" status. Condition Removal:
To remove the conditions, a second application must
then be submitted to the INS and the couple is
required to attend a second interview to establish
the validity of their marital relationship. Validity
of Marriage: The validity of the marriage is best
established by demonstrating that the parties
cohabitated, purchased assets jointly, and
commingled income in joint accounts. It is important
that the second application is submitted before
expiration of the conditional status. Death of
citizen spouse- Divorce - Abuse: The INS has special
procedures for situations where a spouse dies, the
parties divorce or domestic abuse occurs which
exposes the immigrant extreme emotional and/or
physical abuse at the hands of his/her U.S. citizen
spouse. Under these circumstances, the immigrant may
submit an application to remove the conditions on
his or her status which will be approved only if it
is demonstrated that termination of immigrant's
status and deportation would cause extreme hardship.
Since such petitions are rarely approved it is
extremely important to contact an experienced
immigration attorney.
IV. Preference One (FB-1) Unmarried sons
or daughters (21 or older) of US citizens.
V. Preference Two (FB-2) Spouses and
children (under 21) of lawful permanent residents.
Unmarried sons and daughters (21 or older) of lawful
permanent residents.
VII. Preference Three (FB-3) Married sons
or daughters of US citizens and their unmarried
children under 21.
VIII. Preference Four (FB-4) Brothers or
sisters of US citizens, provided that the citizen is
21 or older and their unmarried children are under
21.
IX. Priority Dates
If the number of applicants exceeds the number of
visas available under a particular category, that
category is considered oversubscribed. As a result,
the applications will be processed and visas issued
in the chronological order in which the petitions
were filed until the numerical cap has been reached.
The filing date of the petition is called the
applicant's "priority date." A visa cannot be issued
until the priority date is reached. This means that
there may be a lengthy waiting period. Sometimes
that period may exceed several years.
X. Application Process
Step One: A sponsoring US citizen or
permanent resident must complete and file an I-130
Petition for an Alien Relative with supporting
documentation. Documentation that is necessary
includes: Birth or baptismal certificates for both
the sponsor and the foreign relative if they are
brother and sisters with the same parents; A
Marriage certificate for spousal applications;
Divorce papers if there was a preceding marriage or
a waiver is sought; Form G-325 which requests
biographical information for both an alien spouse
and the sponsoring U.S. citizen Two photos of an
alien spouse; Evidence of U.S. citizenship and Form
I-551 Alien Registration Receipt Card; A filing fee
of $110 (cash or US postal money order). If proper
documentation is not available, secondary evidence
must be presented. This may take the form of sworn
affidavits or other documentation attesting to the
existence of the claimed family relationship.
Step Two: After the I-130 Petition is
approved by the INS, a Form called an I-797 - Notice
of Action will be sent to the National Visa
Processing Center. This information will then be
forwarded on to the petitioning party and the
appropriate U.S. consulate office in the country
where the alien relative must apply for his/her
immigrant visa.
Step Three: The alien relative must
contact the US consulate in his or her country and
follow instructions regarding the process including
submitting any additional information that is
necessary. This usually will include Form 179 - a
summary of biographical data and the following
documents: Passport; Birth certificate; Photographs
of the applicant (usually four); Form I-864
Affidavit of Support from Petitioning party; Proof
of Marriage and any former marriages; Documentation
of any divorce. Any foreign documents must be
accompanied by a certified English translation.
Step Four: Every applicant must have a
complete medical examination performed by a
physician before applying at the consulate for an
interview.
FOR A CONSULTATION CALL 952.746.2153
Copyright (c) By Maury Beaulier. All
Rights Reserved
ABOUT THE AUTHOR
Name: Maury Beaulier
Email: mbeaulier@hjlawfirm.com
Address: 10400 Viking Drive Ste. 500
State: MN
City: Eden Prairie
Postal: 55344
Country: US
Phone: 952.746.2153
Fax:
Toll_Free:
Firm: Hellmuth & Johnson, PLLC
Website: http://www.workvisalawyers.com
Practice: Immigration
Copyright: Yes
Date: September 12, 2005 This article courtesy of
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