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Are you a United States citizen or lawful permanent residence (i.e. a green card) who wants to sponsor a family member to live permanently in the United States?
U.S. citizens and lawful permanent residents (i.e. green card holders) may petition on behalf of close family members to allow them to immigrate to the U.S. As an immigration attorney, it is a truly rewarding experience to help reunite or create new families. Our Firm has the experience and compassion to identify your best option and work towards achieving your family’s ultimate immigration goals.
It is important to understand that U.S. immigration law defines immediate relatives differently from how the term is commonly used. Under U.S. immigration law, an immediate relative is a spouse, unmarried child under the age of 21, or parent of a U.S. citizen. This does not mean you cannot sponsor other family members as a U.S. citizen or that lawful permanent residents cannot sponsor family members. The process simply varies depending upon your immigration status and your relationship with who you wish to sponsor. Immediate relatives are not subject to annual visa quotas and therefore, can typically become lawful permanent residents much faster. On the other hand, non-immediate relatives are subject to annual visa quotas and therefore, wait years to immigrate to the United States.
To sponsor a foreign-born spouse for lawful permanent residence (i.e. a green card), you must typically be at least 18 years of age and have entered into a legally valid marriage. You may sponsor your spouse regardless of whether you are a U.S. citizen or lawful permanent resident. Generally, whether a marriage is valid depends upon the law in the place where the marriage is celebrated. However, there are some marriages that are not recognized by the U.S. government regardless of whether they are valid where they were entered:
Polygamous marriages (i.e. more than one spouses at time);
Marriages that violate the public policy of the couple’s state of residence, such as incestuous marriages or child marriages;
Proxy marriages unless you can establish the marriage has been consummated; and
Marriages entered into solely for the purpose of evading U.S. immigration laws (i.e. to get a green card).
Regardless of whether you are a U.S. citizen or lawful permanent resident (i.e. green card holder), the process starts by filing a Form I-130, Petition for Alien Relative on behalf of your spouse. You must submit evidence of establishing your U.S. immigration status, you entered valid marriage in the place where it occurred, and you entered your marriage in good faith. It is not enough to simply submit evidence that you and your spouse are legally married. You need to submit evidence to show you entered the marriage with the intent to build a life together and not for the sole purpose of obtaining immigration benefits.
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 or have a prior order of removal reinstated. 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 your spouse.
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 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 your spouse. Once the visa application and all of the required documents are submitted, you will be scheduled for an interview at a U.S. Embassy or Consulate and if all goes well, an immigrant visa will be issued.
You can sponsor your foreign born child for lawful permanent residence (i.e. a green card) if he/she is your biological child, stepchild, or adopted child. Both U.S. citizens and lawful permanent residents can sponsor unmarried children to immigrate to the United States. If you are sponsoring a child over the age of 21, his/her children who are unmarried and under the age of 21 can also immigrate to the United States with your child.
IMPORTANT INFORMATION:
The stepparent-stepchild relationship must be formed prior to the child’s 18th birthday to be considered a child under U.S. immigration law. The immigrant visa petition can be filed after the child’s 18th birthday.
The child must be adopted prior to his/her 16th birthday to be considered a child under U.S. immigration law. A limited exception applies when siblings are adopted. In such circumstances, if a child is adopted prior to his/her 16th birthday, his/her siblings will also be considered a child under U.S. immigration law so as he/she is under the age of 18 at the time of the adoption.
If you are a native-born or naturalized U.S. citizen, you can sponsor a married child. You can sponsor your foreign born child for lawful permanent residence (i.e. a green card) if he/she is your biological child, stepchild, or adopted child. Your child’s spouse and children who are unmarried and under the age of 21 can immigrate to the United States with your son or daughter.
IMPORTANT INFORMATION:
The stepparent-stepchild relationship must be formed prior to the child’s 18th birthday to be considered a child under U.S. immigration law. The immigrant visa petition can be filed after the child’s 18th birthday.
The child must be adopted prior to his/her 16th birthday to be considered a child under U.S. immigration law. A limited exception applies when siblings are adopted. In such circumstances, if a child is adopted prior to his/her 16th birthday, his/her siblings will also be considered a child under U.S. immigration law so as he/she is under the age of 18 at the time of the adoption.
You can sponsor your foreign born parent, stepparent, or adoptive parent for law permanent residence (i.e. a green card) if you are a native-born or naturalized U.S. citizen. You must be at least 21 years old to sponsor a parent for lawful permanent residence.
IMPORTANT INFORMATION:
The stepparent-stepchild relationship must be formed prior to the child’s 18th birthday for the stepchild to be able to petition for the stepparent.
You can file an immigrant visa petition for both your natural parents and stepparents.
You can sponsor your brothers and sisters to immigrate to the United States if you are a native-born or naturalized U.S. citizen. If your brother or sister is married, his/her spouse and children who are unmarried and under the age of 21 can immigrate to the United States with your brother or sister.
IMPORTANT INFORMATION:
You can petition for half-siblings, step-siblings, and adopted siblings.
To petition for a stepbrother/stepsister, you must each have been a “child” of a common parent. This means that they must meet the definition of a child under U.S. immigration laws. At least one of you must have been under the age of 18 when your parents were married.
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.
IMPORTANT INFORMATION:
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.
If you have recently gotten engaged or are planning on proposing in the near future, congratulations! A K-1 visa petition (i.e. fiancé visa petition) allows your fiancé to come to the United States to marry you and apply for lawful permanent residence. To be eligible for fiancé visa, you have to meet the following requirements:
You and your fiancé must have seen each other at least once in the last 2 years. This requirement may be excused if meeting in person would be contrary to religious/cultural practices or if the U.S. citizen can demonstrate meeting in person would pose a hardship.
You must intend to marry within 90 days of your fiancé’s arrival in the United States. If your plans change and you decide not to marry, your fiancé must depart the United States on or before the expiration of the 90-day period.
You and your fiancé must be legally able to marry. For example, if either you or your fiancé were previously married, the prior marriage must be terminated before you can start the fiancé visa petition.
You must establish you have a genuine relationship with your fiancé.
IMPORTANT INFORMATION:
You cannot file a fiancé visa petition if you and your financé have already married overseas.
The fiancé visa process is a great option for same-sex couples where the foreign national is from a country that does not recognize same-sex marriage.
When a couple has been married for less than 2 years at the time the foreign national becomes a lawful permanent resident (i.e. gets his/her green card), he/she is granted such status conditionally. This means that instead of receiving a permanent resident card valid for 10 years your permanent resident card is only valid for 2 years. You are entitled to all the same rights and privileges as someone who has a 10-year permanent resident card. You simply need to take an additional step prior to the expiration of your 2-year permanent resident card.
You may “remove” the conditions on your lawful permanent residence if
You are still married to the same U.S. citizen or permanent resident (i.e. green card holder) after 2 years. Your children who also received lawful permanent residence through your marriage can be included on your petition if they received their conditional resident status at the same time or within 90 days of you. Otherwise, each child must file his/her own petition.
You are a widow/widower who entered into your marriage in good faith that ended because of your spouse’s death.
You entered into your marriage in good faith, but the marriage unfortunately ended through divorce or annulment.
You entered into your marriage in good faith, but either you or your child were battered or subjected to extreme hardship at the hands of your U.S. citizen or lawful permanent resident (i.e. green card holding) spouse.
