family based immigration

Family Immigration

Family unity is at the core of American immigration policy. Attorney Pamela Hartman and her team are committed to keeping families together. On behalf of the American Immigration Lawyers Association, Ms. Hartman volunteered last year at an immigration detention center housing Central American women and children in Artesia, N.M. She continues to help families reach their dream of obtaining permission to live and work in the United States.

In today’s immigration system, husbands and wives can petition for foreign-born spouses, children for their parents, parents for their children, and siblings for each other. Immigrant visas are available immediately for spouses (including same-sex couples) and for parents of U.S. citizens age 21 and over.

Priority Date
Grown children, brothers, sisters and relatives of green card holders can expect to wait before becoming eligible for an immigrant visa to the U.S. This wait can stretch anywhere from a few months to many years. When your relative begins the process by applying for an immigrant visa, you will obtain a “priority date”. This priority date is the key to when you will be eligible for a visa to live permanently in the United States.

Visa Bulletin
Each month the U.S. Department of State publishes its Visa Bulletin which provides current processing times for immigrant visas. Compare your priority date to the date on the Visa Bulletin and you can get a very rough estimate of how long you may need to wait for a visa.

Relatives who want to start the petitioning process should have their certified marriage and birth certificates available. When obtaining a green card through marriage, be prepared to provide USCIS with documents proving the authenticity of your marriage. USCIS will want to know that your relationship is real, so you will need to show that you and your spouse reside together and co-mingle your financial affairs and everyday life. For couples who have been married for fewer than two years, the foreign-born spouse will obtain a conditional, two-year green card. Before the conditional green card expires, the foreign-born spouse must provide additional documentation to USCIS showing either that the marriage continues, the marriage was entered into in good faith but did not succeed, or in some cases, the foreign-born resident was abused by his/her spouse.

Affidavit of Support
Sponsors of family members will, in most cases, be required to provide an Affidavit of Support attesting that they will be financially responsible for their family member for 10 years (40 working quarters), or until that member becomes a U.S. citizen. Divorce does not remove the sponsor’s obligation to repay the U.S. government if an ex-spouse obtains public benefits that he/she is not entitled to receive.

Death of Sponsoring Relative
Sadly, sometimes a sponsoring relative passes away before the family member is eligible to obtain an immigrant visa. In 2010, the U.S. government changed the law to allow some surviving relatives to obtain immigrant visas, despite the death of their sponsor.

As a surviving relative, you may be eligible to obtain a green card or other benefit even after the death of your petitioning relative. You may be eligible if you lived in the United States at the time your relative passed away, and have remained in the United States since that time.

Fiance Visa (K-1)
Planning a wedding is complicated enough, but if your intended spouse is from another country, it becomes exponentially more complex. Obtaining a fiancé visa can be time consuming and complicated. Remember that, except for narrow exceptions, you and your intended must prove that you have met in person at least once in the prior two years. Once your intended obtains a fiancé visa, you must marry within 90 days of entry to the United States.

Waivers of Inadmissibility
Sometimes it is necessary to obtain a waiver to be eligible for a green card. For example, if you remained in the U.S. unlawfully for more than six months, or you misrepresented yourself in order to obtain a U.S. visa, you may be found inadmissible for a green card.

You will need to ask USCIS to waive the inadmissibility grounds so that you can apply for the green card. To seek the waiver you must have a qualifying relative – usually a spouse or parent who has US citizenship or green card status. You will need to prove to USCIS that your relative will face extreme hardship if you are not allowed to obtain a green card.

I-601A Provisional Unlawful Presence Waiver
If you are married to a U.S. citizen and you entered the country illegally, it may be possible to obtain a waiver that will allow you to apply for the green card. You can apply for and receive approval for the waiver without leaving the United States. (President Obama issued directives in late 2014 that will expand eligibility to spouses of green card holders.) To do this, you must show that your spouse will suffer extreme hardship if you are not permitted to remain in the United States.

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