Family Immigration

Family ImmigrationImmigration law is a complex and convoluted body of statutory and regulatory provisions combined with a multitude of administrative memoranda and manuals. In other words, it is a labyrinth, which is difficult to navigate even for legal professionals who are not experienced in the field, let alone the general public. In this regard, the component of the immigration law that relates to family immigration is no different or easier. It is especially so in light of the fact that the complexity of immigration law increases as the law continues to evolve and change due to political pressures, administrative changes and resource availability.

Generally, the American People believe in the importance of family. It is reflected in the history of this country, views of the Founding Fathers and political philosophy revealed in the actions of the U.S. Congress. Uniting families is viewed by Congress as one of the most important aspects and functions of the immigration law. As a result, members of the nuclear family of U.S. Citizens (USC's) and Legal Permanent Residents (LPR's) are awarded special privileges in U.S. immigration system. These privileges are subdivided into three major categories:

  1. immediate relatives
  2. individuals who do not need to wait in line and can always immigrate; members of the nuclear family
  3. spouses and minor (under 21 years of age) children of the LPR's and extended family members including unmarried adult children of the USCs and LPRs as well as married adult children and siblings of the USC's.

Those who are subject to the waiting periods are required to wait their turn before they are allowed to join their family members in the USA. The waiting periods may be lengthy and are influenced by the per-country numeric limitations on the number of visas available annually. At the same time immediate relatives are not subject to such limitations and thus allowed to have their immigration applications processed as soon as they are filed.

Family Based Immigration

One method of obtaining lawful permanent residency is through a qualifying relative who is either a United States citizen or a lawful permanent resident. United States citizens and lawful permanent residents can help their qualifying foreign relatives in petitioning for lawful permanent residency in the United States and eventually even citizenship. There are different categories family-based immigration.

Marriage Fraud

There are many immigration benefits available to aliens who are married to U.S. citizens. For this reason, many aliens facing adverse immigration situations or simply looking for a quick way to gain immigration status in the United States have been known to consider entering into sham marriages solely for the purpose of obtaining immigration benefits. Accordingly, due to the special benefits available to aliens who marry U.S. citizens, and the potential for abuse, immigration authorities apply high levels of scrutiny to the legitimacy of the marriage when an alien seeks an immigration benefit based on marriage to a U.S. citizen. This article will explain the harsh consequences of marriage fraud and, consequently, why it is never an option to be considered.

Consequences of Marriage Fraud

The Immigration and Nationality (“INA”) contains very harsh provisions to combat fraudulent marriages. A sham, fake, or fraudulent marriage is one entered into by the couple to get around this country’s immigration laws. Under the INA, a marriage is not valid solely because the couple went through the motions to obtain a certificate of marriage.

Determining Whether Previous Marriage was Bona Fide

As we explain in our detailed article on marriage fraud, the penalties imposed for being found to have entered into a marriage for purpose of circumventing U.S. immigration laws are extremely severe. In the event that an alien previously gained an immigration benefit through marriage to a U.S. Citizen (USC) or lawful permanent resident (LPR), and then seeks to obtain a visa through another marriage to a USC or LPR, USCIS will assess the veracity of the previous marriage when adjudicating the current marriage petition.

Criminal Complaint Against Enrique Marquez Jr. Contains Evidence of His Sham Marriage

On December 17, 2015, a criminal complaint was filed in the United States District Court for the Central District of California against Enrique Marquez Jr, in part for being the straw purchaser of the guns used by Syed Farook and his Tashfeen Mailk in the terrorist attack in San Bernardino California on December 2, 2015. Marquez is accused of having violated 18 U.S.C. 1546 on account of the evidence that he entered into a sham marriage with an alien so that she could circumvent the immigration laws of the United States and fraudulently obtain status as a lawful permanent resident (LPR). I will discuss the statute that Marquez is accused of violating and the specific evidence in the criminal complaint.

Immigrant Petition and/or Adjustment of Status in the Absence of the Petitioning Spouse

It is widely believed that in absence of the original petitioning spouse, his or her petition for an immigrant visa on behalf of the beneficiary (aka alien spouse) and/or application for adjustment of status filed by the beneficiary would inevitably be denied by USCIS or an Immigration Judge as the case might be.

Sponsoring for Immigrant Visas or Adjustment of Status

In most cases, an alien applying for adjustment of status or an immigrant visa will require a sponsor to file an affidavit of support on his or her behalf. This article will use the applicable statutes, regulations, and immigration agency guidance to provide an overview of the requirements that a person must meet in order to sponsor an alien and requirements for filing a successful application.

Sponsor Liability

Persons who act as sponsors of immigrants seeking adjustment of status or immigrant visas assume “joint [in the case of multiple sponsors] and several liability” in becoming sponsors. This means that the sponsor is responsible for maintaining the sponsored immigrant above the federal poverty line, and is also responsible for repayment of any means-tested public benefits that the sponsored immigrant obtains. This article will explain the concept of sponsor liability after a Form I-864, Affidavit of Support, is approved, factors that trigger liability, and scenarios in which a sponsor may be subject to litigation for failing to satisfy his or her responsibilities as a sponsor.

The Effect of the Adam Walsh Child Protection and Safety Act on Immigration Law

The Adam Walsh Child Protection and Safety Act of 2006 [PL 109-248, 120 STAT, July 27, 2006] was a broad piece of legislation designed to protect minors from sexual violence. In furtherance of that goal, the Adam Walsh Act amended selected sections of the Immigration and Nationality Act (INA). This article will explain the specific effects that the Adam Walsh Act has on immigration law.

Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017): Definition of "Conviction" Under Adam Walsh Act

On January 12, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017). The Board held that a U.S. citizen is considered to be convicted for purpose of the adam Walsh Act and section 204(a)(1)(A)(viii)(I) of the INA “where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.” The decision essentially adopts the same standard for determining whether a U.S. citizen petitioner was “convicted” of a specified offense against a minor under the Adam Walsh Act that would be used for an LPR petitioner.

K-1 and K-2 Visas for Fiancées and Derivatives

U.S. immigration law provides that U.S. citizens (USCs) may petition for K-1 visas for alien fiancées who do not already have immigration status in the United States. The intended beneficiary of a K-1 petition may be approved, provided that all of the eligibility requirements are met. Furthermore, derivative K-2 visas may be available for children of the principal K-1 beneficiary. In order to remain in the United States, a K-1 visa beneficiary must marry the USC spouse within 90 days of admission; otherwise he or she will be without lawful status along with any derivative beneficiaries. K-1 visa beneficiaries may adjust status, but only through marriage to the USC petitioner. This article will explain the eligibility requirements for K-1 visas and the process for maintaining, and eventually adjusting, status.

USCIS Revises Rules on Remarriage and Surviving Spouse Petitions

On November 30, 2015, The United States Citizenship and Immigration Services (USCIS) has issued an important Policy Memorandum. In effect, USCIS changed its policies such that it will now be possible for an alien surviving spouse who had an immediate relative petition filed on his or her behalf to adjust status based upon that original petition after remarrying. Under the previous policies, remarriage before adjustment of status based upon the original petition would bar the surviving spouse from adjustment of status based upon the petition filed by his or her deceased spouse. In this post, I will explain the reasons for theprevious policy, why USCIS has changed its policy, and what this change means going forward.

Proving Citizenship or Permanent Residency to Petition for Relative

In order to file a family-based immigrant visa petition on behalf of a relative, the petitioner must be a U.S. citizen or lawful permanent resident (LPR). Accordingly, the petitioner must prove that he or she is a U.S. citizen or an LPR in order for the petition to be approvable. In this article, we will explore the evidentiary requirements for proving status in the Department of Homeland Security (DHS) regulations used by United States Citizenship and Immigration Services (USCIS) regulations and in the Department of State’s (DOS’s) Foreign Affairs Manual (FAM).

Second-Preference Spousal Petitions by LPR Who Obtained LPR Status Through Marriage

Under statute, an alien who obtained lawful permanent residence through marriage may not have approved a second-preference petition for a spouse within 5 years of obtaining permanent residency. However, a separate provision the statute allows such a petition to be approved if the alien demonstrates by “clear and convincing evidence” that the previous marriage was bona fide, that is that it was not entered into for the purpose of circumventing the immigration laws. In the precedent decision in the Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989), the Board of Immigration Appeals (BIA) that where more than 5 years have elapsed, the petitioning LPR need not show that his or her previous marriage was bona fide by clear and convincing evidence in order for the petition to be approvable. However, regulations promulgated subsequent to the Matter of Pazandeh suggest that the “clear and convincing evidence” standard will be applied so long as the original marriage ended within 5 years, notwithstanding whether the petitioner has him or herself been a permanent resident for 5 years. In this article, we will look at the statutes, the Matter of Pazandeh decision, and the regulations and their effect on both the statute and the BIA precedent.

Matter of Ruzuku: Sibling-to-Sibling DNA Test Results to Establish Sibling Relationship

On March 29, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Ruzuku, 26 I&N Dec. 731 (BIA 2016). Ruzuku concerns the evidentiary value of direct sibling-to-sibling DNA test results for determining whether a sibling relationship exists. The Board rejected USCIS’s position that sibling-to-sibling DNA test results could not be considered by USCIS and further held that where such results indicate two people are at least 99.5 percent likely to be siblings, the results should be considered probative evidence of the sibling relationship. In this article, we will examine the facts of the case, the relevant agency guidance, and the Board’s reasoning in coming to its precedent decision.

The Matter of Abdoulin: Evidence of Abandonment of LPR Status May Be Considered in IV Proceedings

In the Matter of Abdoulin, 17 I&N Dec. 458 (BIA 1980), the Board of Immigration Appeals (BIA) held that that adjudicators need not ignore evidence that a lawful permanent resident (LPR) who sponsored a relative for an immigrant visa in the second preference category had abandoned his or her permanent residency. In this article, we will discuss the BIA’s precedent decision in the Matter of Abdoulin.

Recapturing Priority Dates for Family-Sponsored Immigrant Visa Applications

Pursuant to INA § 203(h)(3), if a child “ages out,” that is he or she exceeds 21 years of age and is not covered by the above provisions of the CSPA, his or her petition will be automatically converted to the appropriate preference category. This article will explain the rules and the process for recapturing priority dates in this scenario.

Overview of Public Charge

In order to be admissible to the United States, most aliens are required to establish that they are not liable to become a “public charge,” that is, that he or she would not become dependent on certain forms of governmental financial assistance. If an alien is found to be likely to become a public charge, and is not specifically exempt from public charge considerations, he or she will be inadmissible to the United States. In many cases where an alien is seeking a visa as the beneficiary of a family-sponsored petition, the alien will need to have an affidavit of support submitted on his or her half to overcome the presumption of public charge. Additionally, the Immigration and Nationality Act (INA) contains a deportability ground for aliens who become public charges under certain circumstances subsequent to admission. In this article, we will examine the concept of public charge.

Understanding the Matter of Brantagin and Prior Decisions on Proof that Previous Marriage Was Legally Dissolved

The Board of Immigration Appeals (BIA) decision in the Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) is one of the most enduring and significant decisions regarding immigration benefits in the context of marriage. In this decision, the Board made clear that when a U.S. citizen files a petition for an alien based on the alien’s marriage to the petitioner, the burden rests with the petitioner to establish eligibility for the benefit sought. Specifically, in Matter of Brantigan, the Board held that where there is an absence of proof that a previous marriage of the petitioner was legally terminated, the petitioner bears the burden of affirmatively establishing that the previous marriage in question had been legally terminated. In this article, we will examine the Matter of Brantigan and the two cases it relies upon: Petition of Sam Hoo and Petition of Lujan. Furthermore, we will look closely at another important and related BIA precedent decision titled the Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).