5 Family Immigration

A major avenue by which individuals can obtain a green card is through a family member. Certain family member relationships are more advantageous than others. And an alien may have more than one green card option available to her because of multiple familial relationships. Thus, it is important to evaluate all the possible routes that one may obtain a green card through different family members.

a) Spouse of a U.S. Citizen

b) For couples: Adjustment of Status or Consular Processing?

c) For couples: location and how to apply for permanent residency.

d) K-1 Fiance of a U.S. Citizen

g) Parent of a U.S. Citizen

a) An alien who marries an U.S. citizen can obtain a green card. If the marriage was entered into within 2 years prior to being given permanent residency, the alien will receive "conditional permanent residence". This means that the permanent resident status can be terminated if, within two years after the permanent resident status is granted, the marriage is annulled, ends in divorce, or was completely fraudulent.

Note that this applies to legal proceedings affecting the marriage. If the marriage is not doing well so that the couple is not together, so long as they are not legally separated, the marriage is still considered "valid" for green card purposes.

In the petition to the INS a spouse of a U.S. citizen will first establish eligibility and apply for either adjustment of status or go through visa processing. It is not sufficient to establish eligibility alone. The foreign national will have to actually obtain permanent residency through either AOS or visa processing.

During the two years the alien receiving the green card is entitled to all rights and entitlements that a regular permanent resident enjoys. That is, he or she can work, travel in and out of the U.S, and accumulate time for purposes of obtaining naturalization for U.S. citizenship.

Spouses of U.S. citizens who have died are still eligible as an immediate relative. However, the spouse must have been married to the U.S. citizen for at least two years and have applied for permanent residency within two years of the U.S. citizen's death. At the time of application, the spouse must not have remarried.

b) If a couple seeking to get married has one individual who is a U.S. citizen, then the foreign national spouse will be able to obtain permanent residency fairly quickly. This is because Congress has deemed the spouse of an U.S. citizen to be an immediate relative. Each year, only a limited number of green cards are available. However, immediate relatives are not subject to this limited supply. They can apply for a green card immediately.

For this type of couple, there are two main ways of obtaining permanent residency. One is for foreign spouses who are currently in the U.S., called adjusting one's status. The other is for foreign spouses who are currently overseas waiting in his or her home country. That process is known as consular processing.

There are important points to consider for each method. Adjustment of status has a primary advantage in that it permits the couple to remain together while the permanent residency application is being processed. This is a significant issue for the two given their status as newlyweds. During the adjustment of status process, the foreign spouse can apply for a work permit so that he can work and contribute to the financial support of the two.

A drawback to adjustment of status is the lengthy duration it currently takes to get an approval. Local INS offices are severely backlogged and approval may take up to three years. Furthermore, adjustment of status is not an entitlement or a right-- it is up to the discretion of the INS. If the foreign spouse has violated his nonimmigrant status or committed some other violation of INS regulations, his application for AOS may be denied.

Consular processing occurs overseas at a U.S. embassy or consulate. Given the smaller volume of immigration petitions, these offices are generally able to process expeditiously the paperwork the foreign spouse needs to enter the U.S.

The foreign spouse will obtain from the embassy or consulate an immigrant visa that he will use to gain entry. The disadvantage to this option is that during the pendancy of the application at the embassy or consulate, the couple usually will be apart, unless the U.S. citizen is able to stay for the duration of the processing time.

If a couple has the foresight to plan ahead, heartache and much frustration can be avoided by strategizing and selecting the most appropriate route to permanent residency. Which option should be used, however, will depend on the circumstances of the couple.

c) For an U.S. citizen/foreign national couple, determining which option to select will significantly depend on the location of each and the status of their relationship.

U.S. citizen is in the U.S. and the foreign fianc (e) is out of the U.S. In this situation, an option available to the couple is the K-1 fianc visa. This visa petition can be approved by the INS fairly quickly. After notice is sent to a U.S. embassy/consulate overseas, the foreign fianc can obtain a K-1 visa, enter the U.S., and get married. Thereafter the foreign national will apply for adjustment of status and wait for permanent residency.

Alternatively, the U.S. citizen can fly out to meet the foreign fianc, get married, and submit paperwork at the local INS overseas or U.S. consulate to apply for an immigrant visa. This second option is less desirable as, in most cases, the U.S. citizen will have to return to the U.S. before the immigrant visa is issued, thus resulting in a period of separation for the married couple.

U.S. citizen is in the U.S. and foreign fiancé is in the U.S. Here, we assume that the foreign fiancé is currently in the U.S. in a valid temporary status such as a F-1 student. It would then be possible for the two to get married in the U.S. and then submit a petition for permanent residency and an application for adjustment of status. INS regulations permit the two applications to be submitted at the same time. The result is that the foreign national can wait in the U.S. and work while waiting for permanent residency. It is vital that foreign fiancé understand that he or she must have entered the U.S. for a valid purpose; entering with the intention of marrying a U.S. citizen is not valid and could lead to an INS allegation of fraud. Such a course of action is not encouraged.

U.S. citizen is in of the U.S. and the foreign spouse is out of the U.S. The U.S. citizen spouse can submit a petition to the INS. Upon approval the INS will send notice to the National Visa Center who will then send a packet to the spouse with instructions on obtaining an immigrant visa and provide notice of approval to the near U.S. consulate. Thereafter the consulate will contact the foreign national for an interview during which she can obtain an immigrant visa to be used to enter the U.S.

U.S. citizen is out of the U.S. and the foreign spouse is out of the U.S. This situation is similar to the first scenario with the result that the U.S. citizen can submit paperwork to the local INS office, if available, or to the nearest U.S. consulate.

d) Download free K-1 forms

If you are interested in hiring an attorney to prepare your K-1 petition, please contact: attorney@siliconiran.com.

g) A U.S. citizen who is 21 or over and unmarried can apply to have his or her parent get a green card.

A couple who is married prior to the birth of the child can be considered the child's parents. If the couple is married after the birth of the child, they are considered his parents only if they were married prior to the child's turning 18 years old.

To establish the mother's relationship to the child, the U.S. citizen child can produce a copy of his birth certificate that shows that she is the birth mother. If the mother has changed her name since the child's birth, a copy of the name change certificate can be submitted to show that the two names refer to the same person.

A father who never married the biological mother can show that he is the father of the child U.S. citizen. Producing a copy of the birth certificate will show this. If the father and child lived together prior to the child turning 18, the application should include proof that there was a father-child relationship. This can be through pictures, written statements from friends, etc. If the father and child did not live together for the child's first 18 years, then it is important to show proof of the father's support of the child. Such proof can be financial and emotional by sending birthday cards, etc.

A stepparent can apply for a green card as an immediate relative if the marriage occurred prior to the child turning 18. If the marriage occurred after the child turned 18, then that parent will have to wait until his or her spouse obtains a green card as the parent of a U.S. citizen. Then the step parent can use the fact that he or she is married to a green card holder to apply as a spouse of a lawful permanent resident.