IMMIGRATION LAW: FAMILY SPONSORED VISAS

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1 IMMIGRATION LAW: FAMILY SPONSORED VISAS General: U.S. citizens and permanent residents can petition for green cards to be issued to certain relatives. This involves a two-step process; Step 1) filing a petition for classification of the relative as a qualifying relative; and, Step 2). the noncitizen relative filing for adjustment of status with U.S. Citizenship and Immigration Services (USCIS) in the U.S., or for an immigrant visa from a consulate outside of the U.S. A. Visas for Immediate relatives: Under the Immigration Nationality Act s (INA) elaborate visa system, the Family-Sponsored Visa category allows U.S. citizens and legal permanent residents to sponsor immediate relatives for legal permanent resident status ( green card status). Who is an immediate relative? : an immediate relative is a legal term of art that includes only children, spouses and relatives of U.S. citizens who are at least 21 years of age. (See INA 101(b)(1); 201(b)(2)(A)(i)) Immediate relatives represent the majority of immigrants entering the U.S. without numerical restriction. 1 B. Visas for Other Family Members: The INA also sets aside an annual percentage of visas for members other than immediate relatives. 2 In addition to immediate relatives, U.S citizens and LPRs may sponsor family members belonging to any of the four preference categories established as set out by INA 203(a)). All relatives of U.S. citizens, except immediate relatives, are subject to waiting periods (due to backlogs within the quota system imposed on each category of relative). The more distant the relationship, the longer the wait. All relatives of Permanent Residents, without exception, are subject to waiting periods. The categories of relatives and the respective waiting periods are organized into four different Preference Categories i. First Preference: is for unmarried sons and daughters over the age of 21of U.S. citizens. ii. Second Preference: is for two categories: 1) the spouses and children of LPRs and 2) unmarried sons and daughters of LPRS. iii. Third Preference: is for married sons and daughters of U.S. citizens and their spouses and children. iv. Fourth Preference: is for brothers and sisters of U.S. citizens who are at least 21 years of age, and their spouses and children. 1 Since 1990, the INA s immigrant visa system has relied on an annual nondiscriminatory worldwide distribution as well as per-country quotas in family-sponsored, as well as employment-based preference categories. 2 The INA s annual allocation of visas for other family-sponsored preference categories may not be lower than 226,000 of the total 480,000 annual family-sponsored visas.. (See INA 201(c)(2))

2 C. Per Country Limits on Family Sponsored Visas and the Visa Bulletin: The INA provides numerical visa limitations on individual countries that apply to Family-Sponsored and Employment-Based categories. (See INA 202). The per country limit system is extraordinarily complex, but works to ensure that the high demand in one country does not use up all of the available world-wide visas. The Visa Bulletin: the Visa Office of the U.S. Department of State publishes a monthly visa bulletin that charts immigrant visa availability by preference category based on per-country limit calculation. 3 o An immigrant visa is available to each noncitizen according to the priority date (the waiting list) in the Visa Bulletin. o A priority date is assigned when the noncitizen s family member files a visa petition. o The Visa Bulletin is issued monthly during the fiscal year. D. Family Sponsored Visas (Marriage Based Immigration): There are visas available to fiancés and spouses of U.S. citizens, which enable them to come to the U.S. before applying for permanent resident status. Marriages are major source of the annual immigrant admissions either as immediate relatives or within a preference category. o Special Requirements under this category: 1) the marriage must be legally valid where it took place and 2) must also qualify under the INA. Sham Marriage Prevention: under the 1986 Immigration Marriage Fraud Act [IMFA], congress set forth the process to identify fraudulent marriages entered into solely for the purpose of gaining immigration benefits. o The IMFA imposes conditional permanent residence on non-citizens seeking a visa through marriage, if the marriage was entered into less than two years before the immigrant visa is issued. (INA 216(g)) Marriages over two years at time the immigrant visa is issued are NOT subject to conditional residency requirement. Removing conditional residence: conditional resident and petitioning spouse must file a joint petition to remove the condition during the 90 day period prior to the second anniversary of obtaining permanent resident status. (INA 216(c)(1)(A). Petition must show: 3 Dept of State, Visa Bulletin, available at

3 The couple may be required to appear for a personal interview before approval of the petition. (INA 216(d)(3); 8 CFR 216.4(b)(1) (2008). Failure to file a joint petition/appear for an interview without good cause results in termination of permanent residence and the non-citizen becomes removable. Other Limitations: an LPR who obtained residence based on a marriage is prohibited from filing a marriage petition for a new spouse UNTIL 5 years have elapsed, unless special circumstances exist. (INA 204(a)(2)(B)) E. Non-Immigrant Visas for Fiancés (K Visas): When a U.S. citizen is engaged to a foreign national residing outside the United States, the K-1 visa allows the fiancé to enter the United States as a nonimmigrant. Once admitted as a K-1, the marriage must take place within 90 days and then the foreign national can apply for adjustment of status. The process starts with filing a K-1 petition with the U.S. Citizenship and Immigration Services (USCIS). Basic Requirements: in petitioning for K-1, the applicant must prove: o the petitioner is a U.S. citizen; o the petitioner intends to marry within 90 days of the fiance entering the United States; o both the petitioner and the fiancé are free to marry (all prior marriages are legally dissolved); and, o the couple must have met in person at least once within two years of filing or come within one of two narrow exceptions. (See above section on IMFA on Conditional Permanent Residence) 4 K-1 Consular Process: The K-1 visa is a nonimmigrant visa, which is processed like an immigrant visa at the consular post. Getting the Form I-129F approved is the first step in the process. The second step is obtaining the visa at the consular post. Consular Returns: It is important to prepare clients and let them know that anything can come up at the consular post. The consular officer may ask questions about the bona fides of the marriage. (i.e. questions about the petitioner s family, important dates, information the petitioner submitted as part of the K-1 application) o If the officer believes the petition is fraudulent, the petition will be returned to USCIS for further investigation. NOTE: this is often problematic because the validity of the K-1 petition is limited, and the petition will expire before any rebuttal 4 A waiver of the in-person meeting requirement can be requested. If requesting a waiver, one must include a detailed explanation and evidence that compliance with the in-person meeting requirement would result in extreme hardship to the petitioner, or would violate strict long-established custom or practice of the beneficiary s foreign culture. (See 8 CFR 214.2(k)(2))

4 information can be submitted (necessitating the submission of a new K-1 Visa with the USCIS with a new filing fee). Issuance of the K-1 Visa: once applicant receives his/her K Visa: o The applicant has 6 months to close out affairs in his or her home country before moving to the United States. o The beneficiary MUST marry within 90 days of entering the United States. After the K-1 Fiancé(e) Enters the United States The K-1 entrant is issued an I-94 card valid for only 90 days. o After marriage, the applicant must then file a complete adjustment of status package, including Form I-864 (Affidavit of Support). Break-up of K-1 Relationship or Death of the U.S. Fiancé Before Marriage: the regulations at 8 CFR 245.1(c)(6)(i) are very clear that the beneficiary of a K visa can adjust status in the United States only by virtue of the relationship to the K visa petitioner and a marriage within 90 days of admission. o If the petitioner and beneficiary break up, there is no other option for the K beneficiary but to leave the United States. NOTE: he or she will accrue unlawful presence after the 90-day K-1 period expires. o EXCEPTION: Divorce or Death Before Adjustment of Status but After Marriage: If the beneficiary made a lawful admission in K-1 status and married within the 90 days, then the beneficiary is able to adjust status to LPR status. (See Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). K-2 for Children of K-1 Visa Holders and Other Visas: o K-2 Visa for Children of K-1 Visa Holders: A child accompanying or following to join a K-1 parent may be admitted as a K-2 non-immigrant. o K-3 Visa for Spouse of U.S. Citizen: When a U.S. citizen has already married a foreign person, and wishes to bring the spouse to the U.S., a K-3 Spouse Visa can be applied for. The K-3 visa enables the foreign spouse to live and work in the U.S. while applying for the green card (either within the U.S. or at the U.S. consulate in the country where they were married). NOTE: The K-4 visa is available for minor children of a K-3 spouse of a U.S. citizen. F. Admissions, Inadmissibility Grounds and Waivers for Immigrant and Non-Immigrant Family-Based Visas: In addition to establishing eligibility for admission in one of the qualifying immigrant, non-immigrant or other categories, noncitizens and must also establish that he or she is NOT in admissible. If the U.S. immigration authorities find you to be "inadmissible," you can be refused a U.S. green card. However, waivers of inadmissibility are available to certain foreign nationals. A waiver means that you ask the U.S. government to overlook or forgive the ground of inadmissibility and still grant lawful permanent residence despite it. Common grounds for inadmissibility include:

5 o Visa fraud; o Document fraud; o Alien smuggling; o False claims to citizenship; o Prior removal or deportation; and, o Unlawful presence in the U.S. 5 Applying for a Waiver of Inadmissibility: Section 212 of the INA states which grounds of inadmissibility allow for waiver applications. 6 o Waiver of Unlawful Presence: may be the most common ground of inadmissibility for which waiver applications are filed, on behalf of applicants who will be attending their final immigrant visa/green card interview at a U.S. consulate. Extreme Hardship Waiver: Noncitizens who has accumulated unlawful presence in the United States and is subject to the three-year or ten-year bar upon departure and attempted reentry, may qualify to file a waiver application if they have a qualifying relative who will experience extreme hardship if they are denied admission. Qualifying Relatives: include a U.S. citizen or LPR spouse, fiance, or parent of the noncitizen applicant. Demonstrating potential extreme hardship to the qualifying U.S. relative: Extreme hardship is not defined in the INA, but it is generally understood to mean hardship that is greater than the normal hardship a qualifying relative can be expected to experience if you are denied admission. o NOTE: This vague definition means that there is no right or wrong answer because it is based on the facts and circumstances of each individual case. It also means that the officer reviewing your case has broad discretion in deciding whether or not your relative s circumstances constitutes extreme hardship. Consider introducing evidence of mitigating factors to your waiver application. These factors include children with the qualified relative, a genuine belief that you had been complying with immigration laws, and being admitted to the country when you were a young child. Any factors that can be deemed aggravating and therefore weaken the overall strength of the 5 The statutory grounds for inadmissibility may be found at INA NOTE: many inadmissibility grounds contain very specific requirements as to who can apply for a waiver and on what grounds -- and that you will have to submit not only a basic request, but many documents to prove that you meet the various requirements and deserve the waiver.

6 application (i.e. prior violations of immigration law or criminal charges, arrests, or convictions or evidence of marriage fraud) should also be addressed. The noncitizen should be prepared to submit evidence that mitigates the seriousness of each aggravating factor. (i.e. rehabilitation evidence). o The Process of Applying for Unlawful Presence Waiver: there are two possible routes for applying for this waiver; by I-601A Stateside Waiver and the traditional I-601 Waiver: I-601A Stateside Waiver: applicants who are immediate relatives of U.S. citizens and can show extreme hardship to a U.S. citizen spouse or parent, can apply for a "provisional waiver" (or "stateside" waiver) on Form I-601A before departing the U.S. for their consular interview. (The Stateside Waiver reduces the risk that they will be denied the waiver and not allowed to return to the U.S. for three or ten years.) Timing: Provisional Waiver Application on Form I-601A can ONLY be submitted AFTER an I-130 has been approved. It is not permitted to submit the visa petition concurrently with the waiver application. Fees: DHS has set the fee for Form I-601A at $585 (the same as the fee for the Application for Waiver of Ground of Inadmissibility on Form I-601). No fee waiver requests will be considered. Additional Documents: In addition to the form and fee, provide proof of eligibility, and documents showing that the waiver should be granted as a matter of discretion. USCIS requires that you provide the following: o Copy of the USCIS approval notice of your Form I-130 visa petition; o EOIR Administrative Closure order (if applicable); o Documents showing that the qualifying relatives would suffer extreme hardship if the visa to the U.S is denied. o Receipt showing that you have paid the Department of State required immigrant visa processing fee. I-601 Waiver: Applicants who don't qualify for a provisional stateside waiver (such as spouses of U.S. permanent residents and siblings of U.S. citizens) will need to apply for the traditional I-601 waiver..

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