One of the most important things we do at the Law Office of Karen Winston is re-unite families through immigration. Whether you want to petition for a family member here in the United States or a loved one overseas, we will advise and guide you through each step of the process.
Family Based Immigration
Typically, a U.S. citizen or lawful permanent resident (“green card” holder) files an immigration petition with the United States Citizenship and Immigrations Services (USCIS). This U.S. Citizen or permanent resident is called the “petitioner” and the alien relative for whom the immigration petition is filed is called the “beneficiary.” If you are a U.S. citizen, you may file an immigrant petition for a parent, spouse, sibling, adult child (married or unmarried) and minor child. As a U.S. citizen, you may also petition for a fiancé who is residing outside of the U.S. As a lawful permanent resident, the family members you may petition for are limited to your spouse, adult unmarried child, and minor child.
Bringing your spouse to the U.S. is a two-step process. The first step involves a petition and evidence demonstrating to immigration that the marriage is real (“bona fide”) and not for the purpose of circumventing the immigration laws. A well-prepared petition detailing how the petitioner and beneficiary have joined their lives together in marriage is key to having your case approved.
The second step is called consular processing where the foreign spouse attends their interview at the consulate abroad. The process begins after the petition is approved by U.S. Citizenship and Immigration Services (USCIS). Once the petition is approved it is sent to the National Visa Center (NVC) which will determine if the foreign beneficiary meets the basic requirements and qualifies for the visa. At this stage, there are several documents submitted by your attorney to the NVC to establish the beneficiary is prima facie eligible for the visa sought. Each U.S. embassy abroad has their own rules and procedures regarding how the documents should be submitted.
Adjustment of Status in the U.S.
Depending on certain factors, your spouse may be eligible to adjust status in the U.S. before USCIS, without having to attend an interview overseas. One of the requirements for adjustment of status is that the foreign beneficiary was admitted or paroled into the U.S. It is the applicant’s burden to prove they were lawfully admitted or paroled to the U.S. This is typically established by providing a copy or the original I-94 arrival record.
The applicant must also prove to USCIS that their marriage is valid and was not entered into for the purpose of circumventing U.S. immigration laws. If the present marriage was entered into while the foreign spouse was in removal proceedings, even if such proceedings were administratively closed at the time, they must meet an even higher burden of proof to demonstrate to USCIS that the marriage is bona fide. Each spouse must also provide evidence of the legal termination of any prior marriages to prove to immigration their present marriage is legally valid. Our office has represented hundreds of spouses adjusting their status through marriage to a U.S. citizen. We know precisely which evidence is required, and how to best present your case to USCIS.
Applicants for adjustment of status, with a few exceptions, must provide an affidavit of support from their sponsor. The affidavit of support is a legal agreement between the sponsor and the intending immigrant where the sponsor agrees to financially support the intending immigrant until the intending immigrant becomes a U.S. Citizen, or is credited with forty (40) quarters of employment. If the sponsor does not meet the sufficient income requirements for their household size, a joint sponsor may be required. A sponsor without income may be still be able to demonstrate they have the financial ability to sponsor the intending immigrant if they have specific sufficient assets.
In addition to demonstrating lawful entry or parole, and a valid, bona fide marriage to a U.S. Citizen, the foreign-born spouse must also show that they are not inadmissible to the U.S., or that they are inadmissible but qualify for a waiver of inadmissibility.
CAUTION: People who entered the U.S. without inspection (EWI), who were not later admitted or paroled, will be ineligible to adjust their status in the U.S. and will have to attend a consular interview abroad. This is true even if they are married to a U.S. Citizen. Departing the U.S. after being unlawfully present will trigger bars preventing the person from re-entering the U.S. Please visit our waivers section for more information regarding the unlawful presence waiver.
Foreign nationals who have been married to their U.S. Citizen spouse for less than 2 years will be granted conditional residence, instead of permanent residence, if their request for U.S. residency is approved.
During the 90-day period prior to the 2-year anniversary of the grant of conditional residence, the couple is required to file a Petition to Remove the Conditions of Residence, with the appropriate fee and supporting evidence. Unfortunately, these petitions are taking years to process and the conditional resident will likely be waiting several years for an interview.
Although the petition is usually filed by both spouses, there are certain circumstances where the petition may be filed by the conditional resident alone. If the couple entered the marriage in good faith but (1) the U.S. citizen spouse has died, (2) the couple has divorced, or (3) the conditional resident spouse has been a victim of domestic violence, the I-751 may be filed by the conditional resident alone by requesting a waiver. A waiver is also available where the resident can prove that termination of their residence would result in extreme hardship.
If approved, the conditional resident spouse will be granted permanent residence which should be renewed every 10 years. Because the petition must include strong supporting evidence, it is important that you begin saving evidence of your relationship during the two-year conditional residence period.
With the recent explosion in popularity of social media and on-line dating sites, more people are meeting that special someone via the internet. If your perfect partner happens to live abroad, there may be immigration options available for you to be together in the U.S. The fiancé visa, a K-1 visa, allows a foreign national to enter the U.S. for the purpose of marrying and residing with their U.S. citizen partner. In addition to passing medical and criminal background examinations, the foreign fiancé and U.S. citizen spouse must demonstrate their intention to marry within 90 days of entering the U.S. The foreign fiancé must also attend an interview in their home country at the U.S. consulate. If the visa is approved, they will be granted permission to enter the U.S. Once here, the couple must marry within 90 days. After the marriage, the foreign spouse may file for adjustment of status, commonly referred to as a “green card,” which will give them the rights and responsibilities of a Lawful Permanent Resident. Where the marriage is less than 2 years old, such residence will be “conditional.” The conditions must be removed before the two-year anniversary of the grant of residence. Given the required evidence, common pitfalls, strict deadlines, and the significant delay and sometimes denials which can occur, it is optimal to proceed with an experienced immigration attorney who can guide you through the correct process.