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Family-Based Immigration

Written by Henry J. Chang

Not all family relationships serve as a basis for permanent residence. Also, U.S. citizens and U.S. permanent residents are treated differently for family immigration purposes. Family-based immigration consists of an immediate relative category and four preference categories. Although it is related to family-based immigration, the K-1 fiance visa is a nonimmigrant visa. It is discussed in a separate article which can be accessed here.

Immediate Relatives

§201(b) of the Immigration and Nationality Act ("INA") defines "immediate relatives" to include:

  1. spouses,
  2. minor children (under the age of twenty-one), and
  3. parents of U.S. citizens (if the citizens are at least 21 years old).

This category is clearly reserved for immediate relatives of U.S. citizens, not permanent residents. There is no limit to the number of immediate relative visas that may be issued in this category in any given year.

Spouses

In order to obtain immigration benefits available to a "spouse", there must be a valid and subsisting marriage between the parties.

Generally, marriage is valid for immigration purpose if it is recognized by the law of the state where it occurs. However, a marriage between persons of the same sex will not be valid for immigration purposes, regardless of its possible validity where it occurred. Marriages that are against public policy, such as polygamous or incestuous marriages, are not valid for immigration purposes even if valid in the state where it occurred. Proxy marriages are specifically excluded by the INA, unless the marriage has been consummated. A marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. Religious ceremonies alone may not create a binding marriage in some jurisdictions. However, if a religious ceremony alone is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. A marriage ceremony might also be valid for immigration purposes, if the parties entered into it in good faith, believed themselves to be married and lived together as husband and wife.

The marriage must be legally subsisting at the time that the immigration benefit is sought. The only exception to this requirement applies to certain spouses of deceased U.S. citizens (discussed below). A marriage can be treated as legally subsisting even though the parties are separated, so long as they are still legally married. The courts have generally rejected the view must be "viable" to support entitlement to immigration benefits. It is now the administrative view that immigration benefits based on marriage may be sought even if the parties are separated, although the separation may be considered in determining whether the marriage was bona fide. However, if the couple is legally separated (i.e., by written agreement recognized by a court, or by court order) the alien no longer qualifies as a "spouse" for immigration purposes even through the couple has not obtained a final divorce (see Matter of McKee 17 I&N 332 and Matter of Zenning 17 I&N 2816)

As a result of the Immigration Act of 1990, immediate relative status may be granted to an alien who was the spouse of a U.S. citizen for at least two years at the time of his or her death and not then legally separated, provided the alien spouse files a visa petition as an immediate relative within two years and has not remarried. This applies even if the deceased spouse was not a U.S. citizen for the entire two-year period before his or her death. However, the deceased spouse must have been a U.S. citizen at the time of his or her death.

Children

General

The meaning of "child" is not as simple as it first appears. For the purposes of family-based immigration, a "child" is defined in INA §101(b)(1) as follows:

  1. a child born in wedlock;

  2. a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

  3. a child legitimated under the law of the child's residence or domicile, or under the law of father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

  4. a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;

  5. a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or

  6. a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the proadoption requirements, if any, of the child's proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

The parent-child relationship must continue to exist at the time that immigration benefits are sought. A child includes only an unmarried person under the age of 21. Accordingly, the child must be both unmarried and under 21 at the time the visa is issued by a consulate and at the time that he or she applies for entry to the United States. If the child marries or becomes 21 after the visa is issued and before he or she applies for entry, he or she becomes disqualified for immediate relative status. However, certain exceptions to this "age-out" problem exist as a result of the Child Status Protection Act, which is discussed elsewhere in this web site.

Parents

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old. "Parent" means a parent who is such by reason of his or her relationship to a "child" within the statutory definition of the term. However, the "child" must have qualified as such within the statutory definition at the time their relationship was established and the parent-child relationship must continue to exist at the time that the immigration benefit is sought.

The Family-Based Preference Categories

Family-based preference categories apply to family immigrants, other than immediate relatives. The first preference category consists of unmarried sons or daughters of U.S. citizens. The second preference family-based category deals with relatives of permanent residents of the United States and is divided into two subgroups each with a separate waiting list for available visas: (a) spouses and minor children of permanent residents, and (b) unmarried sons or daughters (but not their children) of permanent residents. A married son or daughter of the U.S. citizen falls under the third preference category. The fourth preference category permits U.S. citizens over the age of twenty-one to petition their brothers and sisters for permanent residence.

These preference categories are subject to annual visa limits. This means that there are visa backlogs in some preferences. Available visas are issued to beneficiaries in order of their priority date, which is the date that their petition for permanent residence is filed.

Preference categories for relatives of permanent residents have longer backlogs than preference categories for relatives of U.S. citizens. Also, India, Mexico and the Philippines have a higher demand for immigrant visas and are subject to country-specific annual limits. Country of birth is relevant rather than citizenship. Therefore, Canadians originally born in one of these countries will be placed on the longer country-specific waiting lists.

Priority dates do not necessarily progress in real time. For example, although the backlog for the family-based fourth preference may be 10 years, the actual wait is far longer. The rate of progression for priority dates often varies. In fact, as the end of each fiscal year approaches (September 30th), it is not unusual to see a retrogression in priority date. This is done to keep visa issuances within the annual numerical limitation.

Derivative Status for Spouses and Children of Family Based Immigrants

The immediate relative category normally does not confer derivative status on a spouse or child of an immediate relative. In other words, the alien spouse or child of an immediate relative does not automatically acquire permanent residence when the principal applicant obtains such status. The only exception is for children of a widow or widower of a U.S. citizen.

Notwithstanding the unavailability of derivative status, some family members of an immediate relative may be entitled independent immediate relative status. For example, an alien child of the principal beneficiary who is under the age of 18 at the time of the principal beneficiary's marriage to the petitioner will qualify as a stepchild. However, a separate visa petition must be filed for each immediate relative.

In contrast, the spouse or child of a preference immigrant accompanying or following to join him or her, is entitled to the same status and the same order of consideration as the principal immigrant. The derivative classification of such spouse or child attaches immediately upon approval of the principal alien's classification, and requires no separate visa petition.

Conditional Permanent Residence in the Case of Recent Marriages

Permanent residence conferred upon an immigrant based on a marriage which is less than two years old at the time the person obtained such status is subject to the provisions of the Immigration Marriage Fraud Amendments of 1986. Such aliens are given condition permanent residence rather than full permanent residence. The petitioner and the beneficiary must jointly file a petition to remove the condition within 90 days of the second anniversary of the alien obtaining condition permanent residence. If the petitioner and beneficiary fail to file the joint petition within the 90 day period, a waiver must be obtained in order to avoid a loss of permanent residence status.

Waivers of conditional status are available in the following situations:

  1. Extreme Hardship - A waiver of the joint petition requirement may be granted if the noncitizen spouse can show that he or she would suffer "extreme hardship" if deported from the United States. Such a waiver is often sought when the citizen or permanent resident spouse fails or refuses to join in the removal petition. The regulations state that, while any removal from the United States is likely to result in some degree of hardship, "only in those cases where the hardship is extreme should the application for a waiver be granted."
  2. Termination of Marriage - To qualify for this waiver, the conditional resident must establish that he or she entered into the marriage "in good faith," that the marriage was legally terminated, and that the noncitizen was "not at fault" in failing to meet the joint petition requirement. The person may also apply for a termination of marriage waiver where the couple has filed for divorce but the marriage is not yet legally terminated, although the waiver cannot be approved until the marriage has legally terminated.
  3. Battered Spouse or Child - The "battered spouse" provisions authorize a waiver of the joint petition requirement if the conditional resident entered into the marriage "in good faith" but during the marriage the noncitizen spouse or child was battered or was subjected to extreme cruelty by the citizen or resident spouse. The noncitizen must also show that he or she was not at fault in failing to meet the joint petition requirement.
  4. Death of U.S. Citizen or Permanent Resident Spouse - A conditional resident may request a waiver of the joint petition requirement if the noncitizen entered into the marriage in good faith, but the U.S. citizen or permanent resident spouse subsequently died. While the conditional resident still must present documentary evidence to prove that the marriage was entered into in good faith, no showing of extreme hardship is necessary.

In either case, the United States Citizenship and Immigration Services will have the opportunity to review the legitimacy of the marriage prior to removing or waiving the condition.

Affidavit of Support Requirement for Family Based Immigration Cases

§531 of the Illegal Immigration and Immigrant Responsibility Act of 1996 ("IIRIRA") amended INA §212(a)(4) to require virtually all aliens immigrating through one of the family-based categories to obtain a legally binding affidavit of support as a condition of admission. Sponsors signing the affidavit must be at least 18 years old, domiciled in the United States, and able to support both the sponsorís and the immigrantís families at an annual income level equal to at least 125 percent of the federal poverty guideline. Sponsors on active duty in the U.S. Armed Forces who are petitioning for their spouse or child are only required to show the ability to support their family at an annual income equal to 100 percent of the federal poverty guideline.

Section §551 of IIRIRA amends INA §213A to make affidavits of support legally enforceable for at least 40 qualifying quarters (effectively 10 years) or until the beneficiary has become a U.S. citizen. Sponsors must notify the DHS whenever they move during the effective period of the affidavit, and are subject to penalties for non-compliance.

The new Affidavit of Support (Form I-864) and the Legacy INS Interim Rule were published on October 20,1997. The Interim Legacy INS Rule is reproduced here. It indicates that applications for adjustment of status filed on or after December 19, 1997 are subject to the new affidavit. The Department of State's cables on reading and evaluating I-864, public charge issues, and the meaning of domicile are also available at this web site.

Although previous cables stated that applicants whose visas were issued on or after December 19, 1997, would need to submit an I-864, a more recent cable (State 238374) has altered this position. Under the latest interpretation, applicants who made formal application prior to December 19 (the date the OF-230 was signed), but whose visas are issued on or after that date, will be admitted at ports of entry under previously existing public charge guidelines. Under any circumstances where an applicant is required to file a new OF-230 on or after December 19, 1997, the new public charge provisions will apply.

Another recent DOS cable (State 235619) has indicated that, if the petitioner is able to meet the income requirement but does not qualify as a sponsor because he or she is not domiciled in the United States, a joint sponsor cannot be used to overcome this problem. If the petitioner cannot qualify as a sponsor, the beneficiary will not be permitted to immigrate.

A June 1998 DOS cable (State 102426) has discussed the commitment of the sponsor to provide assistance to the alien. It states that, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor - the affidavit is enforceable regardless of the sponsor's actual intent - and should not be considered by the consular officer.

Filing of Certain Immediate Relative Petitions at United States Consulates Abroad

Years ago, it was possible to file a Form I-130 petition for an immediate relative directly with a United States consulate, where the petitioner and the beneficiary were both resident in the consular jurisdiction. The practice was later discontinued but, in recent years, United States consulates once again began accepting Form I-130 petitions for immediate relatives. Petitioners who took advantage of this procedure were able to bypass USCIS's petition adjudication process and and were able to secured immigrant visas for their immediate relatives much faster.

Unfortunately, the Adam Walsh Child Protection and Safety Act (the "Adam Walsh Act"), Pub. L. No. 109-248, became law on July 27, 2006. On January 22, 2007, DOS announced that, as a result of the Adam Walsh Act, consular posts were no longer permitted to accept or adjudicate any I-130 petition that had not been adjudicated by USCIS.

Fortunately, DOS recently announced that it had worked with USCIS to develop a mechanism for performing the criminal background checks, mandated by the Adam Walsh Act, for petitions accepted abroad by consular officers. As of March 21, 2007 (the date of the announcement), consular posts are again accepting immediate relative petitions filed by United States citizens who are resident in their consular district, including members of the U.S. Armed Forces, as well as true emergency cases, such as life and death or health and safety, and others determined to be in the national interest.

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