Family-Based Immigration Basics
Efforts by the current administration to impede immigration into the US, there are still methods by which a person can come to the US to live and work legally. Family Based Immigration is a method by which a person with a US citizen or Lawful Permanent Resident relative can obtain green card status.
Family Based Immigration: General InformationDespite efforts by the current administration to impede immigration into the US, there are still methods by which a person can come to the US to live and work legally. The most frequently used method is Family Based Immigration.
The process will vary depending on whether or not your non-US relative is living in the US or in their country of origin.
Those who entered the US with permission can follow a process known as ADJUSTMENT OF STATUS. Those that did not enter the US with permission (emphasis added) or are, at the time you want to start your case, living outside of the US will likely have to complete their case through CONSULAR PROCESSING.
Also, those in the US that entered without permission have additional requirements that may delay their immigration process. If your non-US relative entered the US without permission or overstayed a visa, their process will likely require additional steps. It is important to discuss all entries into the US with an immigration lawyer so that they can best counsel you on your situation.
An important note- It is critical that those relatives who entered the US without permission or overstayed a visa DO NOT leave the US until they have met with a qualified immigration attorney.
When referring to a qualified immigration attorney, make sure that the person you speak with is a LICENSED attorney. Licensed attorneys, in particular those who primarily practice in the field of immigration law AND are members of the American Immigration Lawyers Association (AILA), spend much time and energy learning all of the fine nuances in immigration law.
When contacting attorneys to schedule a consultation, ask whether your potential immigration lawyer is a member of AILA. You can also look for an immigration lawyer recommendation via the organization’s website at www.AILA.com. And finally, you can always call our office at 785-776-2000 to schedule your consultation.
US citizens can help non-US family members obtain lawful permanent residence in the US. Citizens can petition for spouses, children (defined by law as unmarried individuals under the age of 21), adult sons and daughters (defined by law as those over the age of 21 both married and unmarried), and siblings born outside of the US.
Lawful permanent residents can petition for spouses, children (unmarried individuals under the age of 21), and only unmarried adult sons and daughters over the age of 21. Married sons and daughters of LPRs do not qualify for immigration-based benefits.
Adopted children can also qualify for benefits. However, it is important to note that the adoption has to have been completed BEFORE the adopted child turns sixteen years old. If a child is adopted with a sibling that is under sixteen years old than an immigration benefit can extend to an adopted child that is over sixteen. However, the federal law requires that the adopted child must still be under eighteen years old at the time of the adoption.
Family Based Immigration: Processing TimeHow long your case takes will be a matter of processing times. The times vary depending on the status of the petitioner, in other words are you-the Petitioner- a US citizen or a lawful permanent resident. Also, the relationship between the Petitioner and the person petitioned will determine the length of time that the federal government has to process the case.
For example, parents, spouses and unmarried children under the age of 21 of US citizens are considered immediate relatives. Their cases are processed fairly quickly as they are not required to wait for a visa number to become available. Of course, fairly quickly is relative as it can still take 1-2 years for a case to be processed from start to finish.
On the other hand, siblings of US citizens typically have the longest waiting lines. And of those, US citizen’s siblings born in Mexico and the Philippines have the longest waiting times of all. Currently, the visa bulletin states that the Department of State is currently processing applications for siblings from Mexico that were received in December of 1997, while Filipino sibling applications received in July of 1998 are now being processed.
For more information about processing times other than immediate relatives, check out the Department of State’s Visa Bulletin. You will note that there are four countries- China, India, Mexico and the Philippines- that have special processing times.
If the parent is a US citizen then once the child has received lawful permanent residence and entered the US with that permission, they can apply for a certificate of citizenship. Their parents US citizenship entitles them to citizenship as well.
However, if the minor child received their lawful permanent residence based on their lawful permanent resident parent’s petition, then they must wait until they are over the age of 18 to apply for Naturalization.
Family Based Immigration: Necessary ProofThe rules require physical evidence to prove the relationship between a US citizen or lawful permanent resident. Physical evidence can include birth certificates for parents, siblings and children, and marriage certificates for spouses. Evidence of active involvement is also helpful in cases involving children. If questions arise about parentage, DNA tests may also be required.
Spouses also have additional evidentiary requirements. Specifically, spouses must demonstrate that the marriage is a good faith marriage based on a desire to be together and share a marital life and not on a desire to obtain an immigration benefit.
Same sex couples also qualify for benefits, thanks to the landmark decision in the 2013 US Supreme Court case. According to the case US v. Windsor, the federal government CANNOT discriminate against same gender marriages in the immigration process like it once did. The evidentiary requirements for a same gender marriage are no different than those for heterosexual marriages.
Once a couple is married (no matter how long) they are eligible to begin the immigration process. However, there are additional requirements that will be placed on marriages that are less than two years in duration.
If, at the time that a person is approved for lawful permanent residence, the couple has been married for less than two years, then the non-US person will receive a conditional residence. The conditional residence is a two-year green card. Within 90 days of the expiration of a conditional green card, the couple must file a joint petition to remove the conditions and demonstrate that they continue to be in a good faith marriage.
Family Based Immigration: Green Card vs. Lawful Permanent ResidenceFirst, a green card and lawful permanent residence do not differ. In years past, the lawful permanent residence card was a green document. Through everyday usage the public began calling the lawful permanent residence card a “Green Card” and the name stuck.
Family Based Immigration: Marriages less than two yearsThe government has always had concerns that people would use marriage-based immigration inappropriately. After all, while all other family based immigration cases require a blood or adoptive relationship, marriage based cases simply require an agreement between two people to enter into a marriage to obtain this great benefit.
Therefore, to prevent fraudulent marriages from receiving the benefit of lawful permanent residence, the government developed the conditional residence as a way to revisit cases and ensure that individuals are married for the right reasons.
Short term marriages get two year “green cards”, while marriages over two years can apply for permanent resident cards without conditions which are valid for ten years.
Fortunately, green card holders do not have to wait for the full ten years to expire before they can apply for Naturalization and Naturalization is the process by which a person becomes a US citizen.
Those people who obtained their lawful permanent residence through marriage that continue to be married to the US citizen who petitioned for them can apply to become US citizens after three years of being green card holders.
Those people who divorced their US citizen petitioner or are parents, siblings or adult children must wait a minimum of five years as green card holders before they can submit to the naturalization process.
Family Based Immigration: Other requirementsIn addition to demonstrating familial relationships, the US government expects the US citizen or lawful permanent resident petitioner to demonstrate that their non-US relative will not become a dependent on government assistance. This is also called being a “Public Charge.” Therefore, petitioners need to also act as financial sponsors for their non-US relatives.
Recently, the Trump administration has attempted to change the public charge requirement. However, federal judges in three states — New York, California and Washington — have issued temporary injunctions against the Trump administration's "public charge" rule, preventing it from taking effect on Oct. 15. But, that does not mean that the financial sponsorship requirements for immigrants are easy.
To obtain lawful permanent residence, immigrants need a US citizen or lawful permanent resident to serve as their financial sponsor. That sponsor must be domiciled in the US and meet the minimum poverty guidelines set forth in form I-864P, HHS Poverty Guidelines for Affidavit of Support.
The guidelines require sponsors to demonstrate that their income meets or exceeds certain amounts. The amounts vary depending on the number of people in the sponsor’s household size and the number of people being petitioned. Also, there are different amounts depending on whether someone lives in the contiguous US, Alaska or Hawaii. All of the requirements, however, are tied to cost of living.
In addition to submitting to a legally binding contract with the US government, the financial sponsor must demonstrate through tax transcripts, w-2 forms, and employer letters that they meet the minimum financial requirements.
Family Based Immigration: Additional InformationFor more information about the Affidavit of Support, tune in to our November immigration Facebook Live program scheduled for November 13, 2019 at 4:30 p.m. During that program, we will discuss the current affidavit of support, the administration’s proposed changes, and the status of the current litigation. In the meantime, here is a link to USCIS’s page for the Poverty Guidelines.
Even if you are thinking about representing yourself and your family member in your case, it is in your best interest that you take the time to consult with a qualified immigration attorney. If you think that you would like to work with us, you can reach us to schedule an appointment at 785-776-2000.
While many people get lulled into a false sense of security because USCIS provides all of the forms on their website, the reality is that there are many fine nuances that can impact the success of an immigration case. For this reason, we encourage all to talk to a qualified immigration lawyer.