LEGAL GUIDE
Written by attorney Joseph James Huprich | Jun 30, 2010

Common Questions Regarding Family-Based Immigration

How can an individual obtain permanent residence through marriage to a US citizen?

If the US citizen resides in the US:

An application to the USCIS office having jurisdiction over the U.S. citizens (petitioners) residence is the first step. Usually, this is a one-step filing, meaning that one applies for petition approval, adjustment of status, and work authorization all at the same time. The USCIS will issue an employment authorization document (EAD), usually within 90 days of applying. The USCIS then arranges marriage interviews for the couple. This may take from two months to over two years, depending on the USCIS jurisdiction. The USCIS will examine documents and question the applicants to determine the bona fides of the marriage. Documents one should be prepared to produce include: wedding photographs, tax returns, joint bills, joint leases or deeds, joint bank accounts, insurance documents naming each spouse as beneficiaries. If the immigration officer suspects that the marriage was entered into solely for immigration purposes, USCIS may investigate at the candidate's home and place of work. If the marriage is less than 2 years old at the time of interview, then the green card will be issued as conditional, and it will expire in 2 years. The applicant and spouse must file papers to have the conditions removed within the 90 day period prior to the expiration of the green card. They must then return for another interview to have the conditions removed.

If the US citizen resides abroad, the paperwork must be submitted and processed at the appropriate US consulate. The process is nearly the same but the waiting time is less - from two to six months.

How can an individual become a permanent resident through relatives?

There are five categories under which an individual can obtain permanent residency through relatives. They are:

  1. Immediate relatives of US citizens: There are no quotas and no priority date waiting for immediate relatives of US citizens. They are defined as: spouses of US citizens (including widows and widowers who were married to the US citizen for at least 2 years and are applying within 2 years of the citizen's death); unmarried people under 21 who have at least one US citizen parent; parents of US citizens, if the US citizen is over 21.

  2. First Preference-Unmarried sons and daughters of US citizens (23,400 per year, plus unused visas from the fourth Preference);

  3. Second Preference-(F2A) Spouses and unmarried children of permanent residents (114,000 per year, plus excess over 226,000 the floor for family based immigration, plus unused visas from the first Preference); (F2B) Unmarried sons and daughters of green card holders who are at least 21.

  4. Third Preference-Married sons and daughters of US citizens (923,400 per year, plus unused visas from the first and second Preferences);

  5. Fourth Preference- Brothers and sisters of US citizens (65,000 per year, plus unused visas from the first second and third Preferences).

The waiting period to obtain an immigrant visa through relatives will vary depending on one's preference category and one's country of origin. Nationals of Mexico, India, People's Republic of China and the Philippines generally have longer waits in these categories.

Common family-based immigration FAQ's:

What if my relative/spouse entered the US illegally? When an alien enters without inspection (EWI), or with fraudulent documentation, they are ineligible to adjust under current immigration law, unless the petition was filed prior to April 30, 2001. In that case, and if certain conditions are met, they are eligible to adjust under INA section 245(i) (see FAQ: What is section 245(i) LINK). In certain cases, aliens may be "grandfathered" in under INA sec. 245(i) if they filed another type of case prior to April 30, 2001 and other certain conditions are met. This prohibition even applies to spouses of US citizens. Please contact ILG for a more case-specific analysis of this regulation.

What if my spouse/relative overstayed his/her authorized period of stay? For spouses of US citizens and other immediate relative filings, one may still adjust status in the US even if you have overstayed your visa. However, for the other family preference categories, an alien cannot adjust status if he/she has overstayed their visa. In fact, if one overstays a visa by 180 days or more, one is barred from adjusting or reentering for 3 years. Furthermore, if one overstays for 365 days or more, one is barred from adjusting or reentering for 10 years. (see FAQ: consequences of remaining in the US illegally) However, if the priority date was established prior to April 30, 2001, then an alien who has overstayed can adjust status under sec. 245(i), if certain conditions are met (see FAQ: What is sec. 245(i)).

Do I make enough money to sponsor my relative? All sponsors must submit form I-864, Affidavit of Support, which assures the government that you are financially capable of bringing an immigrant relative to the United States. Most sponsors must earn 125% of the poverty income level-please see form I-864P for the current guidelines (see the current poverty level guidelines- http://uscis.gov/graphics/formsfee/forms/files/I-864p.pdf ).

How can an individual become a citizen of the US?

There are 4 ways to become a US citizen:

  1. By Naturalization Petition

  2. Must be a lawful permanent resident.

  3. Must be 18 years or older.

  4. Must be a permanent resident for five years. However, if a person obtained permanent residence through marriage to a US citizen, they may be eligible for naturalization in three years if: a) the couple has been married for 3 years, b) if the spouse was a citizen during that entire period, and c) if the couple are still living in marital unity.

  5. Must have resided for at least three months in the state where the petition was filed.

  6. Must be physically present in the US for at least one half of the five years (or one half of three if spouse is a citizen), with no absences longer than 1 year. (please note that absences longer than 6 months, but less than 1 year can also break this rule if the immigration officer deems that the applicant did not give a "reasonable explanation" for the absence).

  7. Must have resided continuously within the US from the date the petition was filed to the time of admission to citizenship.

  8. Must be a person of good moral character for the five years

  9. An elementary level of understanding, reading and writing English. Exceptions to this rule for persons over fifty, in the US for 20 years or more as a permanent resident; and persons over 55, in the US for 15 years as a permanent resident.

  10. A basic knowledge of the fundamentals of US government and history, to be displayed by passing an USCIS examination. This requirement can be waived for people over 65 and have been permanent resident for 20 years.

  11. By birth in the US: Under the 14th Amendment, all persons born ... in the United States ... are citizens regardless of the status of their parents, who may be citizens, green card holders, or illegal aliens.

  12. By acquisition at birth: A child born outside the US where one or both parents are US citizens may acquire US citizenship at birth.

  13. By derivation through naturalization of parents: A child born outside the US may become a citizen by virtue of the parents' naturalization.

Additional resources provided by the author

See www.uscis.gov or call us at 626-797-0275.

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