Calamia Law- Family Based Immigration Information
- I-130 Petition for Alien Relative
- Adjustment of Status under INA Section 245 (a)
- Adjustment of Status under INA Section 245 (i)
- Consular Processing
- Removal of Condition
- Fiancé Visas (K-1, K-2, K3 and K4)
- V VISAS
INTRO
A legal permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. If you want to become a legal permanent resident based on the fact that you have a relative who is a citizen of the United States, or a relative who is a legal permanent resident, you must go through a multi-step process.
The USCIS must approve an immigrant visa petition, I-130 Petition for Alien Relative, for you. This petition is filed by your relative (sponsor) and must be accompanied by proof of your relationship to the requesting relative.
The Department of State must determine if an immigrant visa number is immediately available to you, the foreign national, even if you are already in the United States. When an immigrant visa number is available, it means you can apply to have one of the immigrant visa numbers assigned to you. You can check the status of a visa number in the Department of State's Visa Bulletin.
If you are already in the United States, you may apply to change your status to that of a legal permanent resident after a visa number becomes available to you. This is one way you can apply to secure an immigrant visa number. If you are outside the United States when an immigrant visa number becomes available, you must then go to the U.S. consulate servicing the area in which you reside to complete your processing. This is the other way to secure an immigrant visa number.
If the sponsor is a U.S. Citizen, they may petition for the following foreign national relatives to immigrate to the U.S:
- Husband or wife.
- Unmarried child under 21 years of age.
- Unmarried son or daughter over 2.
- Married son or daughter of any age.
- Brother or sister, if the sponsor is at least 21 years old, (including half-brothers and half-sisters); or
- Parent, if the sponsor is at least 21 years old.
If the sponsor is a legal permanent resident, they may petition for the following foreign national relatives to immigrate to the U.S.:
- Husband or wife; or
- Unmarried son or daughter of any age.
In any case, the sponsor must be able to provide proof of the relationship.
If you wish to immigrate as a relative of a U.S. Citizen or legal permanent resident, you must obtain an immigrant visa number based on the preference category in which you fall. People who want to become immigrants are classified into categories based on a preference system. The immediate relatives of U.S. citizens, who include parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by USCIS. An immigrant visa number will become immediately available. The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:
First preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
Second Preference: Spouses of legal permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
Third Preference: Married sons and daughters of U.S. Citizens.
Fourth Preference: Brothers and sisters of adult U.S. Citizens.
The I-130 Petition for relative may be completed by a U.S. Citizen or legal permanent resident of the United States who wants to petition for an alien relative to immigrate to the United States of America. For each eligible relative a separate Form I-130 needs to be filed. Form I-130 is just the first step in the process. After Form I-130 has been filed, each eligible family member has to wait before one can apply for an adjustment of status to become a lawful permanent resident or for an immigrant visa. A visa number must be available.
Adjustment of Status under INA Section 245(a)
Adjustment of status refers to the procedure for becoming a legal permanent resident without having to leave the United States. It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad.
Adjustment of status is discussed at §245 of the Immigration and Nationality Act ("INA"). According to INA §245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:
- The alien makes an application for such adjustment,
- The alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
- An immigrant visa is immediately available to him at the time his application is filed.
Adjustment of Status under INA Section 245 (i)
Aliens in some categories were previously permitted to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee pursuant to that subsection). INA §245(i) expired on January 14, 1998. However, the enacted Legal Immigration and Family Equity Act of 2000 ("LIFE Act") extends INA §245(i) by replacing the old eligibility cutoff date with a new date of April 30, 2001.
This means that eligible aliens had until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in the United States. Under the LIFE Act, INA §245(i) will be available to any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that is filed on or before April 30, 2001. All qualified beneficiaries will be "grandfathered-in" under INA §245(i) even if they don't actually apply for adjustment of status (by submitting form I-485) until after the April 30, 2001 deadline, as long as a bona fide immigrant petition or labor certification application is filed before that date.
It should be mentioned that the LIFE Act has added a new "physical presence" requirement. Applicants need to prove that they were actually in the United States on the date of enactment (December 21, 2000) in order to be eligible to use INA §245(i). Beneficiaries of immigrant petitions or labor certifications that are filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on December 21, 2000.
The INA §245(i) penalty fee is still $1,000USD, and is in addition to any other filing fees levied by USCIS. The $1,000USD fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).
Consular Processing is the process by which a beneficiary of an immigration petition (either family based or employment based) who is outside the U.S. applies for an immigrant visa at a U.S. consulate overseas. This process will commence only when the underlying immigration petition is approved and visa numbers for the prospective immigrant's country are available. If the beneficiary is in the U.S., he or she may apply for adjustment of status through the USCIS, or may choose to immigrate via consular processing abroad.
If you were granted conditional resident status through marriage to a U.S. citizen or legal permanent resident (green card holder), you need to remove the condition on residence. If you are still married, the petition should be filed jointly by you and the spouse through whom you obtained conditional status. However, you may apply for a waiver of this joint filing requirement if:
- You entered the marriage in good faith, but your spouse subsequently died.
- You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment.
- You entered the marriage in good faith and have remained married, but have been battered or subjected to extreme cruelty by your U.S. citizen or legal permanent resident spouse; or
- The termination of your status and removal would result in extreme hardship.
- You are a Conditional Resident child who entered as a conditional permanent resident and you are not able to be included in a joint petition filed by your parent(s).
- You are a Conditional Resident child who was battered by or subjected to extreme cruelty by your U.S Citizens or Conditional resident parents.
K1 Visa for Fiancé (e) of U.S. Citizen
The K1 visa permits the K1 visa holder to enter the United States for a 90-day period to marry the petitioner and apply for permanent residence (green card) and obtain a work permit. Once the visa is issued, the K1 visa holder has six months to enter the United States for the purpose of marriage.
Children of the K1 visa applicant may obtain a K2 visa to enter the United States together.
K2 Visa for a Child of K1 Visa Holder
A K2 visa may be obtained by a K1 visa holder's minor children. A K2 visa holder may enter the United States with the K1 visa holder or enter at a later time.
K3 Visa for Spouse of U.S. Citizen
The K3 visa permits the spouse of a U.S. Citizen to enter the United States and remain in the United States while their permanent residence (green card) application be approved. The K3 visa holder may obtain a work permit while in the United States.
Children of the K3 visa applicant may obtain a K4 visa to enter the United States together.
K4 Visa for Child of K3 Visa Holder
A K4 visa may be obtained by a K3 visa holder's minor children. A K4 visa holder may enter the United States with the K3 visa holder or enter at a later time.
The V visa is a non-immigrant visa that allows the spouse and children of a legal Permanent Resident (Green Card holder) to live and work in the United States on a nonimmigrant category. The purpose of the V visa is to allow the spouse and children to reside lawfully in the United States while waiting for the permanent U.S. resident status or an immigrant visa. The previous law required the spouse and children to wait outside the United States. V visas are usually issued abroad at U.S. Embassies and Consulates. However, individuals already in the United States may be allowed to obtain "V" status without having to leave the country and apply abroad. Several application forms need to be filled and a fee must be paid before the "V" visa or status is approved. Individuals on V-1, V-2, or V-3 visa status are eligible to apply for work authorization so they can legally work in the United States while waiting for permanent resident status.
Eligibility Requirements for a V-1 Visa:
- Be the spouse of a Legal Permanent Resident of the United States (Green Card holder)
- The beneficiary of Form I-130, Petition for Alien Relative, has to be filed on or before December 21, 2000
- Be waiting for at least 3 years for an immigrant visa, due to processing delays or unavailability of visas
V Visa Categories:
- V-1 Visa: Lawfully married to a Legal Permanent Resident of the United States.
- V-2 Visa: Unmarried child (under the age of 21) of a Lawful Permanent Resident.
- V-3 Visa: Unmarried child (under the age of 21) of V-1 or V-2 visa holder or applicant.
Immigration Form I-130 has to be filed by the Legal Permanent Resident on or before December 21, 2000 in order to apply for a V visa. This fact alone disqualifies all applicants who filed their applications after December 21, 2000.
