FAMILY IMMIGRATION SERVICES
Adjustment of Status (Green Card)
Adjustment of Status in the U.S. is generally the most desirable means to obtain U.S. permanent residence (a green card) which is the goal of most immigrants. There are many benefits to this process as the procedure may allow for the intending immigrant to remain in the U.S. while their green card application is being processed. The intending immigrant can also obtain a work permit (Employment Authorization Document or EAD) and a travel permit (Advance Parole) while their case is pending. Generally, however, an intending immigrant must have entered the U.S. legally and maintained non-immigrant status throughout their stay in the U.S. to be entitled to this benefit. The exception for which is Immediate Relatives and certain victims of domestic abuse. (link)
Consular Processing (Green Card)
Consular Processing is a path to an immigrant visa and ultimately a green card for intending immigrants that are outside the U.S. or for those that otherwise must leave the U.S. and appear at a U.S. embassy or consulate abroad to have an immigrant visa issued. Upon admission as an immigrant a green card will be issued. Consular Processing adds additional layers of bureaucracy as agencies of both U.S. immigration and the U.S. Department of State are involved. If you are already in the U.S., caution must be taken before departure and careful analysis is required as there are several potential pitfalls in processing, including the application of the 3 and 10 year bars to re-admission for those that have overstayed their period of admission (been unlawfully present in the U.S.). (link)
Immediate Relatives – Spouses, Parents and Children of U.S. Citizens
Based on the importance of unification of the nuclear family, the following relationships qualify for the Immediate Relative immigrant classification which exempts foreign nationals from the immigration quotas as well as several other requirements which are generally applied to U.S. immigrants:
- Spouses of U.S. citizens
- Children (under 21 years of age and unmarried) of U.S. citizens
- Parents of U.S. citizens that are 21 years of age or older
Family Preference Categories
The U.S. immigration laws also recognize the importance of other more distant familial relationship and assign preference towards these relationships. The waiting period for a green card under these categories depends upon the level of preference and the number of immigrants that are already in the waiting line for a green card. The preference categories are as follows:
- Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any.
- Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters.
- Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children.
- Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age.
K-1 Fiancé(e) Visa
K-1 Fiancé(e) Visa enables a foreign fiancé(e) of a U.S. citizen to come to the U.S., get married and apply for permanent residence. The K-1 visa recipient must marry the sponsor within 90 days of arrival to apply for permanent residence. The foreign-citizen will then apply for adjustment of status to a permanent resident (apply for a green card). The fiancé(e)’s children under the age of 21 may accompany the K-1 visa recipient in K-2 status and adjust status with their parent. These cases have become increasingly complex in light of the added requirements of the International Marriage Broker’s Act of 2005 which applies regardless of whether a marriage broker was involved. (link)
K-3 Visa for Spouse
The K-3 Visa for Spouse enables a foreign spouse of a U.S. citizen to enter the U.S. in a non-immigrant status and then apply for adjustment of status to a permanent resident (apply for a green card). This visa category is intended to shorten the physical separation between the foreign-citizen and U.S. citizen spouses by providing the option to obtain a nonimmigrant K-3 visa overseas and enter the United States to await approval of the immigrant visa petition. However, in practice most cases see very little time-savings making consular processing of an immigrant visa a better option. The foreign spouse’s children under the age of 21 may accompany the K-3 visa recipient in K-4 status and adjust status with their parent. (link)
Waiver of Inadmissibility (waivers for certain criminal activity and immigration fraud)
Individuals that have been convicted of, or that have made admissions to, certain crimes such as crimes involving moral turpitude and certain drug offenses or that have committed immigration fraud may still obtain permanent residence if they establish that their deportation would result in extreme hardship to close relatives ("qualifying relatives"). Careful analysis is required both to establish eligibility for the waiver and to determine if approval is likely as a matter of discretion. Once it has been established that an intending immigrant is eligible and has a reasonable possibility of approval, copious evidence must be gathered and provided with an extensive legal argument. (link)
Unlawful Presence Bars
“Unlawful Presence” is a complex legal concept which generally refers to periods in which an immigrant overstayed the time they were permitted to remain in the U.S. Individuals that have accrued more than 180-days but less than one year of unlawful presence are generally ineligible to return to the U.S. for a period of 3 years upon their departure. Individuals that have been unlawfully present for one year or more and who depart the U.S. cannot be readmitted within 10 years of their departure. There are waivers for these grounds of unlawful presence which require extreme hardship to certain close relatives (“qualifying relatives”). Unlawful presence is a highly complex area of immigration law, requiring great care because of the gravity of the consequences in triggering these bars. (link)
Provisional Unlawful Presence Waivers
In the interest of family unification, President Obama has enabled individuals that would be subject to the unlawful presence bar, but must depart the U.S., generally due to an unlawful entry through Mexican-U.S. border, to apply for a waiver of inadmissibility before they must depart the U.S. and appear at a consulate abroad for visa processing. The policy applies only to immediate relatives (spouses, children and parents of U.S. citizens) and the standard remains extreme hardship. The waiver is only available where the unlawful presence bar is the only waiver necessary, meaning that if immigration even suspects that an immigrant is subject to another ground of inadmissibility (for example the criminal or immigration fraud grounds) the provisional waiver will be denied. As a result, careful preparation and an extensive legal argument is needed to win the approval of these complex cases. (link)
Battered Spouse, Children & Parents (the Violence Against Women Act or VAWA)
As a form of humanitarian relief, spouses, children, and parents of U.S. citizens (both male and female) and certain spouses and children of green card holders (also both male and female) who have experienced physical and/or extreme emotional abuse may petition for green cards themselves without the support or knowledge of their abusers. Individuals that meet the strident requirements for this classification may obtain green cards under certain circumstances even where they entered the U.S. unlawfully or have fallen out of status. (link)
Deferred Action for Childhood Arrivals (DACA)
President Obama, through executive action, provided a path for certain undocumented immigrants who came to the United States as children to request deferral of action (a reprieve from deportation or the initiation of deportation proceedings) and an Employment Authorization Document (EAD) for a period of two years, subject to renewal. In addition to authorizing employment, DACA also enables the beneficiary to obtain a Social Security Number and a driver’s license in most states. Under certain limited circumstance a travel permit (Advance Parole) may also be issued. The base requirements are as follows:
- The applicant must have been under the age of 31 as of June 15, 2012;
- The applicant must have come to the United States before their 16th birthday;
- The applicant must have continuously resided in the United States since June 15, 2007, up to the present time;
- The applicant must have been physically present in the United States on June 15, 2012, and at the time of filing;
- The applicant must have had no lawful status on June 15, 2012;
- The applicant must be currently attending a U.S. school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or have been an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- The applicant must not have been convicted of a felony, significant misdemeanor (DUI is considered a “significant misdemeanor), or three or more other misdemeanors, and must not otherwise pose a threat to national security or public safety.