Family Immigration

Family sponsored immigrants are divided into two categories: 1) those who can immigrate to the U.S. and who are not limited numerically, and 2) those who must wait in a queue to immigrate to the U.S., because of the numerical limits placed on their category of family immigration. The total number of visas available for family immigration are 480,000 minus the number granted to immediate relatives plus unused employment based visas.
Immediate relatives of U.S. citizens are not limited numerically, and can apply right away for permanent residence. Immediate relatives of U.S. citizens include spouses, unmarried children under 21, and parents of U.S. citizens who are over the age of 21.

The other family-sponsored categories are all limited numerically, and include the following:
1) First preference: unmarried adult children over the age of 21 of U.S. citizens;
2) Second preference: spouses, minor children and unmarried sons and daughters of permanent residents;
3) Third preference: married adult children of U.S. citizens;
4) Fourth preference: brothers and sisters of adult U.S. citizens.

Those who have been in the U.S. in unlawful status on or after April 1, 1997 must have had their relative petition filed before April 30, 2001  in order to adjust to permanent residency within the United States. Alternatively, if the person was the beneficiary of another relative petition or a labor certification application filed before April 30, 2001, they may then make a completely different application and adjust to permanent residency, so long as they filed before April 30, 2001 either a labor certification application or a relative petition which was approvable when filed. You should consult an attorney about the details for substituting another application for one which was filed prior to April 30, 2001.

If they entered legally with a valid visa, and were inspected and admitted by an immigration officer, even if they have fallen out of status, an immediate relative of a U.S. citizen may adjust to permanent residency within the United States.

The Child Status Protection Act

Generally, children only qualify for sponsorship if they are under 21 years of age and unmarried (although there are separate categories for adult sons and daughters). Previously, children being sponsored by their parents for a greencard would no longer be eligible for permanent residency the day they turned 21, even if they had not received their greencards because of INS delays in processing their applications, or other factors beyond their control.

With the new Child Status Protection Act (CSPA), signed into law on August 6, 2002, this is no longer the situation. The CSPA protects the children of U.S. citizen parents, permanent residents and asylees. For purposes of determining eligibility for a greencard, the child’s age is determined on the date on which the relative petition is filed by a U.S. citizen parent. For example, if a U.S. citizen mother files a petition for her 18 year old daughter, the daughter will still be granted permanent residence even if a U.S. Consulate does not complete processing of the application for permanent residence until the daughter is 22 years old.

Second, if a minor child is being sponsored by a lawful permanent resident parent, and the parent later naturalizes to U.S. citizen, the child’s age is determined based upon the date of the parent’s naturalization. For example, if a permanent resident files a petition for a 17 year old son, and then naturalizes when the son is 20, the son will remain eligible for an immigrant visa even if the son has already turned 22 on the date of the visa application.

Third, if a U.S. citizen parent sponsors a married son or daughter, and the child later divorces, the child’s eligibility for immediate relative status would be determined based upon the child’s age on the date of the divorce. This would only apply if the child married very young, and then divorced before becoming 21 years old.

Fourth, the CSPA protects children of lawful permanent residents who have been sponsored by their parents, or who are accompanying or following to join immigrants sponsored by their family or employer, or who won the diversity lottery. In these cases, the age of the child is determined on the date an immigrant visa number becomes available (which is when a priority becomes current and there is an approved petition), minus the number of days the petition was pending. However, the child must apply for permanent residence within one year of the priority date becoming current and the approval of the petition.

Immigration Through Marriage For Battered Spouses And Children

Because of a concern that the path to permanent residency through marriage to U.S. citizens was being abused by desperate and dishonest aliens, the Immigration Marriage Fraud Amendments (IMFA) of 1986 created obstacles to obtaining permanent residence through marriage. To deter marriage fraud, it creates a two-year conditional residence status if the marriage is less than two years old at the time of the INS interview. Towards the end of the two-year period, both husband and wife have to jointly file to remove the condition, and change the alien’s status from conditional to permanent resident.
According to immigration law prior to 1990, if the marriage fell apart within the two years and the U.S. citizen spouse refused to cooperate in filing the joint petition, it was extremely difficult for the immigrant spouse to become a permanent resident. The law required the immigrant spouse to demonstrate that he or she was not at fault in the marriage.

The Immigration Act of 1990 provided that the alien spouse may change his or her conditional green card to a permanent green card without the help of the U.S. citizen spouse when one of the following applies: 1) The marriage has been legally terminated. The marriage was entered into in good faith and has been ended through divorce or annulment, regardless of which party was at fault; 2) Battered Spouse Waiver. During the marriage, the alien spouse was battered or subjected to extreme cruelty. The alien spouse must submit evidence of domestic violence, as well as any actions she or he took to protect herself or himself. For example, police complaints, court records, orders of protection, and hospital or doctor records will help show that the spouse was battered or subjected to extreme cruelty. Extreme mental cruelty is shown by an evaluation of a professional such as a psychologist, psychiatrist, or social worker; 3) Extreme hardship would result if the alien is deported.

In 1994, Congress enacted the Violence Against Women Act, allowing a spouse or child suffering abuse from a spouse or parent who is a lawful permanent resident or United States citizen to file an immigrant petition on his or her own without the help or agreement of the abuser. In that legislation, Congress also created a new form of suspension of deportation for abused spouses and children of lawful permanent residents or U.S. citizens. The prior law only helped the battered spouse after the conditional green card had been granted, by allowing her to file for the removal of the conditional status on her own. But the petitioning spouse could still refuse to file the initial petition or withdraw the petition before the issuance of the green card. The 1994 amendments now allow the battered spouse or child of either a US citizen or resident to file the petition herself, without the help of the spouse.

The spouse or child who is self-petitioning must reside in the U.S. at the time she or he applies for this benefit and must have resided in the U.S. with the U.S. citizen or lawful permanent resident. The spouse must show that she or he married the abusive spouse in good faith, and intended that they spend their lives together. Children who are self-petitioning do not need to prove the “good faith” nature of the marriage. It is important to note that the victim of domestic abuse, or the parent of the child victim, must be married to the abuser at the time of filing the self-petition. A divorce obtained upon filing will not affect the validity of the petition. Any change in the abuser’s immigration status, such as relinquishment/abandonment of the green card or deportation, will have no effect on the battered spouse’s self-petition. The abuser must be a citizen or permanent resident. The legal status of the abused spouse or her children is irrelevant. The act applies to a spouse or child who “has been battered by or has been the subject of extreme cruelty perpetrated by a USC or LPR spouse or parent”. Extreme cruelty includes violence or threats of violence. The self-petitioner may be a spouse who is suffering domestic abuse, a child suffering domestic abuse, or the parent of a child suffering domestic abuse. Children who are not suffering abuse may be part of the parent’s self-petition. The abuse must have taken place during the marriage. The self-petitioner must prove that he or she has “good moral character”. One cannot show good moral character if one has been convicted of a drug offense (other than a single offense of simple possession of 30 grams or less of marijuana), or has been convicted of an aggravated felony, or false testimony to obtain a benefit under the INA, or confinement in a jail for 180 days or more, or other offenses.

The self-petitioner must show extreme hardship to the applicant or child if deported. Hardship includes more than poverty. The factors include:
1) age of the person;
2) number of the person’s children and their ability to adjust in their native country;
3) serious illness that necessitates medical attention which is difficult or impossible to obtain in the foreign country;
4) person’s inability to find a job that pays an adequate salary or any job at all in the foreign country;
5) adverse psychological impact of deportation;
6) irreparable harm that may result from lack of educational opportunities.

For victims of domestic violence, the following factors would be considered:
1) the nature and extent of the physical and psychological effects of the battering or extreme cruelty;
2) the impact of the loss of access to the US courts and criminal justice system (including the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, family law proceedings and court orders regarding child support, maintenance, child custody and visitation);
3) the self petitioner’s need for social, medical and mental health services which would not be available in the home country;
4) laws, customs and social practices that would penalize the petitioner as the victim of abuse;
5) the abuser’s ability to travel to the foreign country and the ability and willingness of the foreign authorities to protect the self-petitioner; and
6) the likelihood that the abuser’s family and friends or others acting on behalf of the abuser would physically or psychologically harm the self-petitioner or the self-petitioner’s child.

The Act also provided for suspension of deportation for the victims of domestic violence at the hands of a US citizen or permanent resident spouse or parent. Only people in deportation proceedings can apply for suspension of deportation. The abuser must be a U.S. citizen or permanent resident spouse or parent. The applicant must have been “battered or subjected to extreme cruelty in the United States” by the spouse or parent. The applicant must have been continuously residing in the United States for at least three years before filing the application. The applicant for suspension of deportation must be a spouse, a child suffering domestic abuse, or the parent of a child suffering domestic abuse. If a child is not suffering domestic abuse, but his or her parent is, it appears that the parent’s suspension application may not include her children. A person seeking suspension of deportation must show extreme hardship if deported. A person seeking suspension must also prove “good moral character” during the three year period required for suspension.

New Law Providing For Family Sponsorship In Cases Of The Death Of The Petitioner

The law now allows alternate family members of a petitioning alien to sign the affidavit of support required for green card approval. If the alien’s original sponsor dies while the application is pending and if the USCIS decides not to deny the petition for humanitarian reasons, the alien can find another family member to sign the affidavit of support. Under prior law, an alien’s green card application would be denied upon the death of the petitioning sponsor, even if there were sympathetic humanitarian concerns in his or her case. The law now provides that the expanded definition of sponsor shall apply with respect to deaths occurring before, on or after the date of enactment.

Families of victims of the terrorist attacks on the World Trade Center and the Pentagon whose immigrant or non-immigrant status was dependent on the victim’s status should not be concerned about facing immediate removal from the United States. The former INS Commissioner stated that, “The INS will exercise its discretion in a compassionate way toward families of victims during this time of mourning and readjustment.”

The immigration law provides the right to file a relative petition to widows and widowers who have been married to a U.S. citizen for at least two years prior to the citizen’s death. The USA Patriot Act expanded the law for those widowed as a direct result of the terrorist attacks of September 11th, without any regard to the length of the marriage. The widow(er) must not have been legally separated from the spouse at the time of the citizen’s death and must file a petition for immediate relative status within two years of the death, and must not have re-married. Any child of a U.S. citizen who was killed in one of the terrorist attacks of September 11th, may file a green card application within two years of the death of the parent, regardless of changes in age or marital status.

The spouses and children of permanent residents who died during the September 11th attacks may also file a relative petition and green card application based upon their deceased permanent resident relative. Survivors of employment-based immigrants also retain immigration benefits under this provision.

A grandparent may also receive immigration benefits if both parents of the grandchild died as a result of terrorism and if one of the parents was a U.S. citizen or national or a permanent resident.