United States immigration law allows for U.S. Citizens and Lawful Permanent Residents (LPRs) to petition for certain family members.
For immediate relatives of U.S. citizens (spouse, parent, or unmarried child under 21), there is no limitation on the amount of visas that can be granted every year. There is a quota for the rest of the family-based (FB) immigrant visa categories.
U.S. citizens may also petition their unmarried (FB-1) and married (FB-3) sons and daughters who are twenty-one and older, as well as their siblings (FB-4). The spouses and children of individuals petitioned in these categories can accompany or follow to join the principal beneficiary.
Lawful Permanent Residents may petition their spouses and unmarried children under 21 (FB-2A) and their unmarried children over the age of 21 (FB-2B).
Family-based petitions are assigned a priority date, which is the date the petition was received by United States Citizenship and Immigration Services (USCIS).Every month, the United States Department of State (DOS) releases the Visa Bulletin, which announces visa availability for the following month, based on the priority date of the petition. To view the current Visa Bulletin, click here: (http://travel.state.gov/visa/bulletin/bulletin_1360.html).
where there is no wait for a visa number, such as is the case with immediate relatives, the applicant can file the petition along with an application for adjustment of status if he or she is in the United States and there is no bar to admissibility to the United States or if a waiver of the bar is available. The case will then be sent to a local office for an interview. Otherwise, the individual must wait for the visa date to become current before filing an application for adjustment of status.
In cases where the beneficiary of the petition is overseas, the approved petition will be sent to the National Visa Center which will collect all the necessary documentation and the visa fees. Once the file is complete and a visa is available, the case will be sent to a consulate where the applicant for a visa will be interviewed. In cases where the wait for a visa is long, the case may stay at the National Visa Center for several years.
Marriage-based petitions are often more complicated than the other family-based immigration cases because of the requirement that the marriage not be entered into for purposes of immigration. In order for a petition to be approved, the couple must demonstrate that their intent at the time of entering into the marriage was to establish a life together. The USCIS Field or District Office will investigate the marriage to ensure that there is no fraud involved. In cases where the spouse is overseas, the consulate will also question the beneficiary of a marriage-based petition about the veracity of the marriage. Scrutiny of marriage-based immigration cases is on the rise. In recent cases, the adjudicators are also inquiring into past marriages of both spouses. In cases where the petitioning spouse received his or her lawful permanent residence through a marriage-based petition, the petitioning spouse's own residence will be questioned.
The penalties for entering into a marriage for immigration purposes can be severe. If marriage fraud is found to exist, the beneficiary of the petition is barred from obtaining permanent residence as a beneficiary of any immigrant visa petition. The only exception to this bar is if a second petition by the same spouse is later approved, overcoming the finding of fraud.
Due to the severe consequences for individuals charged with marriage fraud, it is vital that a thorough examination of each case is undertaken prior to submitting a marriage-based case to USCIS. Preparation prior to the interview is essential. Even if marriage fraud is not suspected, the USCIS adjudicator will not approve a marriage-based case at the interview unless the couple can demonstrate that the case is approvable. Failure to provide proper documentation at the time of the interview can lead to lengthy and disruptive delays in adjudication of the petition and, consequently, the application for permanent residence. In cases where the spouse is overseas, preparation prior to the consular interview is similarly advisable. A knowledgeable and experienced immigration attorney who is familiar with not only the relevant laws and regulations but also the practices of the local District Office can make all the difference in the marriage-based case.
U.S. citizens can also petition for their fiancés residing abroad to join them here in the United States. The couple must demonstrate their intention to marry within ninety days of entering the United States, as well as provide other types of evidence to show that the relationship is bona fide and that the couple is free to marry. A petition is filed with USCIS and, once approved, is sent to the consulate where the fiancé is interviewed. If the interview is successful, the fiancé is granted a K-1 visa. Children of the fiancé are granted K-2 visas. These petitions may appear straightforward but both USCIS and the consulates scrutinize fiancé petitions very carefully because of the high incidence of fraud. If the case is delayed or denied because of inability to meet the burden of proof, it can result not only in wasted money and stress because of cancelled wedding plans but also could mean that a couple is unable to start their married life together in the United States as planned. For these reasons, it is prudent to consult with a knowledgeable immigration attorney when planning to bring a fiancé to the United States on a K-1 visa..
U.S. immigration law considers adopted children to be children for purposes of immigration benefits, so long as the adoption meets the legal requirements set out by law. There are three ways to immigrate an adopted child. The requirements and processes for bringing adopted children to the United States are extremely complex and often challenging. Numerous agencies are often involved. It is highly recommended that anyone intending to adopt an overseas child to consult with an attorney knowledgeable and experienced in this area of immigration law before starting the process.