Family Immigration

Immigration law is a complex and convoluted body of statutory and regulatory provisions combined with a multitude of administrative memorandum and manuals. In other words, it is a labyrinthine, 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.

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.

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.

Public Charge

In order to be considered admissible to the United States, most applicants for nonimmigrant and immigrant status are required to demonstrate that they will not become public charges.  In scenarios in which an immigrant visa petition or adjustment of status process is based on a petition filed by a family member, or family member has a significant ownership stake in the petitioning employer (for an immigrant visa or adjustment of status), the application generally requires an affidavit of support from the family member, and the applicant will likely face a higher presumption of public charge than in most other cases.

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.

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.

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.