OBTAINING PERMANENT RESIDENT “GREEN CARD” THROUGH CLOSE FAMILY MEMBERS
United States citizens and permanent residents may petition for, or “sponsor”, certain close family members to become permanent residents. In all cases, the family relationship must be established through documentary evidence.
If the required evidence of family relationship is unobtainable, such as a birth certificate, substantial secondary evidence is necessary. In many family-based preference categories, there are long and growing waiting periods before the individual sponsored may become a permanent resident.
In most instances, and most notably in marriage cases, the family relationship must be maintained throughout the wait for immigrant status. Establishment of a place in line alone does not provide any legal status or right to remain in the United States. Waiting periods are set for each family-based preference category and country of birth by the Department of State monthly. The family-based preference categories and requirements for each are set forth below.
Most family-based cases are initiated when the sponsoring relative files an immigrant visa petition, known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center. The filing date of this petition establishes the “priority date”, or place in line for an immigrant visa.Processing times for these petitions vary from several months to two years or more. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa.
This permits the individual to become a lawful permanent resident (“green card” holder) after admission to the United States with the immigrant visa. Or, if eligible, he or she may apply to adjust status to lawful permanent resident in the United States.
The filing of an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas. Thus, immigration counsel should be consulted before a visa petition is filed.
“Immediate relatives” of United States citizens, which include the spouses, children under 21, and parents of U.S. citizens, have special benefits. Immediate relatives have no waiting periods for immigrant visas to become available, although processing times vary from a few months to a year or more.
Additionally, immediate relatives who entered the United States lawfully may be able to apply to adjust status simultaneously with the filing of the immigrant visa petition. USCIS procedures for family-based adjustment of status cases vary depending on where the applicant lives.
All family-based immigrants must be admissible under the immigration laws, or receive waivers of inadmissibility, if eligible, to become lawful permanent residents. Legal advice is essential to determine admissibility.
In all family-sponsored cases, the sponsoring relative must file an “affidavit of support”. This must include proof that the American or permanent resident relative earns sufficient income to support the individual being sponsored, his or her family, if applicable, and the sponsor’s additional household and dependents, at 125% of the poverty line.
If the sponsor is unable to meet this income requirement, a co-sponsor must also file an affidavit of support. The affidavit of support requirement obligates the sponsor and co-sponsor to support the sponsored individual at 125% of the poverty line until he or she works and pays 40 qualifying quarters into the Social Security System, he or she dies, or in most cases, when the sponsor dies. This obligation is enforceable by a court.
IMMEDIATE RELATIVES OF AMERICAN CITIZENS
Immediate relatives are the parents, spouses and children under age 21 of United States citizens. Immediate relatives are exempt from the preference system and have no waiting lines for immigrant visa availability. However, usually there are processing delays of several months or longer.
Proof of the family relationship and citizenship of the U.S. citizen sponsor always is required. An immediate relative who enters the U.S. legally, but who subsequently stays beyond the date of authorized admission, nonetheless may acquire permanent resident status in the United States, however, those who have remained unlawfully and then leave the United States, even with USCIS permission, can face lengthy bars to returning to this country.
Unauthorized employment also does not prejudice the “green card” case of an immediate relative.
An immediate relative’s spouse and children are not eligible to derive immigrant status through the sponsored relative. Each must qualify to immigrate independently through a family-based or other immigrant category.
Immediate Relative Spouses
A United States citizen may sponsor his or her spouse. If the sponsored spouse entered lawfully, even if the lawful stay has expired, he or she may be able to apply to adjust status to permanent residence. A marriage certificate valid in the place the marriage was performed is required. Proof of termination of all prior marriages of each party also is necessary.
If a “proxy” marriage took place, where one party was not present, it is not valid until the marriage is consummated. A marriage must not be “sham”, in other words, entered into solely for immigration purposes. The USCIS normally requires extensive evidence that a married couple’s relationship is genuine. A sham marriage is a crime for both parties, and a sham marriage bars a foreign national forever from having a visa petition approved on his or her behalf.
Conditional Permanent Residency
If the immigrant spouse becomes a lawful permanent resident before two years have passed since the couple’s marriage, he or she becomes a “conditional resident”. A conditional resident’s “green card” expires two years after the grant of conditional permanent residence. In the 90-day period before the expiration date on the “green card”, the couple must file a joint petition to remove the conditional status, i.e., make the permanent resident status truly permanent.
This normally is accompanied by evidence the couple has been living together as husband and wife. If this is not possible, due to death or divorce, an application to waive the requirement to file jointly must be filed. The waiver application maybe granted if evidence demonstrates the immigrant spouse would suffer extreme hardship if removed from the United States.
It also may be granted if the marriage was in good faith, but was terminated through death of the spouse, or through divorce if the immigrant spouse was not at fault for failing to meet the requirement to file a joint petition. Lastly, it also may be granted if the immigrant spouse or child was battered by or suffered extreme cruelty perpetrated by the sponsoring U.S. citizen (or permanent resident) spouse.
If a couple marries when the sponsored spouse already has been placed in immigration removal, or deportation proceedings, the couple must prove by “clear and convincing evidence” that the marriage is not sham.
K-1 Fiancé or Fiancée Petitions
A United States citizen may sponsor a fiancé/fiancée through a K-1 petition filed with a USCIS Service Center. Upon its approval, the fiancé/fiancée may apply for a K-1 visa and enter the United States. The fiancé/fiancée’s children under 21 may receive K-2 visas.
The marriage between sponsor and fiancé/fiancée must take place within 90 days of entry. The new spouse and children, if any, then must apply to adjust status to lawful permanent residence. If a United States citizen’s spouse lives outside the United States, the citizen may file a K-3 petition after the immigrant visa petition has been filed, before its approval.
Upon approval of the K-3 petition, the spouse may enter the United States and apply to adjust status to lawful permanent residence. The spouse’s children under 21 may receive K-4 visas. K visa holders may apply for permission to work after arrival in the United States. Please note that the “Child Status Protection Act”,discussed further below, does not apply to K-2 or K-4 visas.
Immediate Relative Parents
Only a United States citizen age 21 or older may sponsor a parent to become a lawful permanent resident. A parent may be a natural mother or father, so long as the sponsoring child was not legally adopted by another parent before age 16. Normally, a birth certificate is required to prove the parent-child relationship. If a father is to be sponsored, the marriage certificate between the mother and father is required.
Alternatively, if the parents were not married, the sponsoring son or daughter must prove he or she was “legitimated” under the laws of the place in which father or child resided, or the existence of a bona fide father-child relationship (i.e., that the father showed an active concern for the child’s support, instruction, and general welfare while the child was unmarried and under age 21) must be proven. A step-parent may be sponsored if the marriage between the parent and stepparent took place before the child’s 18th birthday. An adoptive parent may be sponsored if the adoption took place before the child’s 16th birthday and the child lived with the adoptive parent in his or her legal custody for at least two years.
Immediate Relative Children
A United States citizen’s children under age 21 are immediate relatives. Under recent legislation known as the “Child Status Protection Act” (CSPA), a child’s “age” is “locked in” at the time of filing the petition with USCIS, for any petition pending as of August 6, 2002 or filed after that date. The family relationship normally must be proved via a birth certificate.
Sometimes, additional evidence is required if the relationship is questioned by USCIS or if a birth
certificate is unavailable. Stepchildren also qualify the same as biological children if the marriage between the parents took place before the child’s 18th birthday. In the case of a father sponsoring a son or daughter born out of wedlock, the father must prove legitimation of the child or the existence of a bona fide father-child relationship.
An adopted child may qualify as an immediate relative if she or he meets the USCIS definition of an orphan, or if the child has lived with the sponsoring parent for a minimum two-year period in the parent’s legal custody. Orphan processing and adoption are complicated subjects outside the scope of this document.
FAMILY-BASED FIRST PREFERENCE
Unmarried sons and daughters age 21 and over of United States citizens, if they are not protected by the CSPA, fall under the family-based first preference category. Proof of the parent-child relationship and citizenship of the sponsor is required. In the case of a father sponsoring a son or daughter born out of wedlock, the father must prove legitimation or the existence of a bona fide father-child relationship.
An immigrant visa petition must be approved before the son or daughter may apply for adjustment of status to permanent residence or an immigrant visa. In addition, there is a waiting line for immigrant visa eligibility. For individuals born in Mexico and the Philippines, waiting lines are significantly longer and immigrant visas sometimes become unavailable for several months at a time.
Thus, alternate immigration strategies may be advisable for individuals from these countries. If someone in this category marries before becoming a lawful permanent resident, he or she automatically converts to the Family-Based Third Preference. Please note that in this and all the family-based preference categories except immediate relatives, petition approval by the USCIS often takes years,as such petitions are lower priority due to the long visa availability waiting lines.
FAMILY-BASED SECOND PREFERENCE
This preference category consists of the spouses and unmarried sons or daughters of lawful permanent residents. Spouses and sons and daughters under age 21 constitute the Family-Based Second Preference “A” category. Sons and daughters age 21 and over constitute the Family-Based Second Preference “B” category.
Marriage and birth certificates, and proof of termination of prior marriages, as appropriate, are required to establish family relationships. In the case of a father sponsoring a son or daughter born out of wedlock, the father must prove legitimation or the existence of a bona fide father-child relationship. The application of the CPSA to the Family-Based Second Preference “A” category is complicated.
The age of the son or daughter is “locked in” only on the date that the “priority date” becomes current for the category (as this is calculated monthly, this date always will be on the first of the month) less the number of days the immigrant visa petition is or was pending, provided that the son or daughter applies for lawful permanent resident status within one year of visa availability.
For example, if an I-130 immigrant visa petition was filed in 1998 when the child was age 20, the priority date became current today (an immigrant visa became available today) and the petition has been pending the entire 5 years, the child’s “age” remains 20, so long as the child applies for permanent resident status within one year. However, if the same petition was filed in 1998 for the same child, but was approved in 2000, the child’s age would be 23 because the petition remained pending for only two years. The application of the CSPA is critically important because of the long waits for visa availability in these categories.
An immigrant visa petition must be approved, and the “priority date” must be current, before a spouse, son or daughter of a lawful permanent resident may apply to adjust status or apply for an immigrant visa. For persons born in most countries, the waiting period is several years long. If the sponsor becomes a United States citizen, the preference category automatically converts to immediate relative for spouses and children under age 21, and Family-Based First Preference for sons and daughters 21 and older on the date of naturalization. The CSPA locks in the age as of the date of the parent’s naturalization even if permanent resident status is accorded after the son or daughter turns 21.
Naturalization to United States citizenship of the sponsor eliminates the waiting lines for spouses and children under age 21, and may reduce the line for sons and daughters 21 and over. However, naturalization of the sponsor currently would add many years to the wait for sons and daughters over 21 from Mexico and the Philippines to immigrate, unless, as permitted under the CSPA, the son or daughter requests that such transfer of preference category not occur. If a son or daughter of a lawful permanent resident marries before he or she becomes a lawful permanent resident through the Family-Based Second Preference, eligibility under this category automatically is cancelled.
If the lawful permanent resident parent naturalizes, then the parent may file a new petition for the married son or daughter. If the son or daughter’s marriage later is terminated, new eligibility for the Family-Based Second Preference is established. If a couple marries when the sponsored spouse already has been placed in immigration removal or deportation proceedings, the couple must prove by “clear and convincing evidence” that the marriage is not sham.
Additionally, a visa petition filed by a lawful permanent resident spouse may not be approved if the marriage occurred within five years of the sponsor’s admission as a permanent resident based on a prior marriage to a United States citizen or lawful permanent resident, absent “clear and convincing evidence” the first marriage was not sham. We strongly recommend legal advice in these situations. Children under age 21 of the sponsored immigrant in this preference category may immigrate with their parents as derivatives. This means they do not require a separate visa petition.
FAMILY-BASED THIRD PREFERENCE
This preference category encompasses the married sons and daughters of United States citizens. Proof of the sponsor’s United States citizenship and the birth certificate of the son or daughter are required, along with the son or daughter’s marriage certificate. Proof of legitimation or a bona fide father-child relationship is required when a father sponsors a son or daughter born out of wedlock.
A petition must be filed and approved before the son or daughter, and his or her spouse and children under age 21, may apply to adjust status to permanent residence or for immigrant visas. In addition, for persons born in most countries the waiting period for immigrant visas currently is approximately six years. For individuals born in Mexico and the Philippines, it is much longer. Alternate immigration strategies may be appropriate.
If the marriage of the son or daughter is terminated before he or she becomes a lawful permanent resident, then the preference category converts to Family-Based First Preference in most instances. Under the CSPA, if an individual under age 21 who is the subject of a Family-Based Third Preference petition terminates his or her marriage prior to his or her 21st birthday, he or she would then become an immediate relative, even if permanent resident status is accorded after the 21st birthday.
FAMILY-BASED FOURTH PREFERENCE
The brothers and sisters (siblings) of United States citizens age 21 and over fall under this preference category. Halfbrothers and half-sisters, sharing one common parent, also qualify. Stepsiblings also qualify if the marriage creating the step-child relationship of each sibling to his or her stepparent took place before the step-child’s 18th birthday. If the sibling relationship is created through a common father, and one or both siblings were born out of wedlock, the sibling(s) must have been legitimated or an ongoing bona fide father-child relationship must be proven.
The waiting period to immigrate in this category for persons born in most countries appears to be about twelve years, but in reality it probably is twenty-five years or more. For persons born in India and the Philippines, the wait already is much longer. Obviously, alternate immigration strategies, such as employment-based immigration, should be explored for the siblings of American citizens.
If you reside in the San Francisco area and need assistance obtaining a Green Card for a family member, please call Gordon Law Group PC at (415) 284-1601.