Regardless of whether you are a U.S. citizen or lawful permanent resident (i.e. green card holder) and who you are sponsoring, the process starts by filing a Form I-130, Petition for Alien Relative along with evidence of establishing your U.S. immigration status and your relationship to the foreign national. With an approved Form I-130, Petition for Alien Relative, your family member will be able to obtain lawful permanent residence (i.e. a green card) either through adjustment of status or consular processing.
ADJUSTMENT OF STATUS V. CONSULAR PROCESSING:
- Adjustment of status is the process through which you may apply for lawful permanent residence if in the U.S. Not all foreign nationals present in the U.S. are eligible to apply for adjustment of status so it is important to speak to an experienced immigration attorney before applying; otherwise, you may be placed in removal proceedings. To apply for adjustment of status, you must submit a completed Form I-485, Application to Register Permanent Residence, required supporting evidence, and a Form I-864, Affidavit of Support Under Section 213A of the INA signed by the family member who filed the Form I-130, Petition for Alien Relative on your behalf.
- Consular processing is the process through which you apply for an immigrant visa if residing overseas. Upon entering the United States with an immigrant visa, you become a lawful permanent resident. To apply for an immigrant visa, you must wait for the Form I-130, Petition for Alien Relative to be approved and an immigrant visa to be available per the Visa Bulletin. You would then submit a completed DS-260, Immigrant Visa Application, supporting evidence, and a Form I-864, Affidavit of Support Under Section 213A of the INA signed by the family member who filed the Form I-130, Petition for Alien Relative on your behalf. You will be interviewed at a U.S. Embassy or Consulate and if all goes well, an immigrant visa will be issued.
What happens if the U.S. citizen or lawful permanent resident dies prior to his/her family being able to immigrate to the U.S.?
- Unfortunately, there are times when a U.S. citizen or lawful permanent resident who has sponsored a family member dies before his/her family member is able to immigrate to the United States. Typically, the family member can no longer immigrate to the U.S. However, there is hope in cases where the Form I-130, Petition for Alien Relative was approved prior to the sponsor’s death. In such circumstances, the foreign national can request humanitarian reinstatement.
Humanitarian reinstatement is discretionary – this means U.S. Citizenship and immigration Services will weigh the “pros” and “cons” to decide whether to grant humanitarian reinstatement. You must have a substitute sponsor to submit a Form I-864, Affidavit of Support Under Section 213A of the INA on your behalf. A substitute sponsor must be:
- A U.S. citizen or lawful permanent resident;
- At least 18 years of age; and
- Your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
Not sure which option is right for you? Request a confidential consultation today.