Family 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.

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.

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.

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.

On March 8, 1968, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Peterson, 12 I&N Dec. 663 (BIA 1968). The issue in Matter of Peterson was whether a marriage between a petitioner and beneficiary was valid where the couple did not reside together and where the petitioner testified that he had married the beneficiary to obtain a housekeeper. The Board held that the marriage was valid, noting several factors, including that the parties were “elderly,” lived in the same house, had known each other prior to the marriage, and intended to have a lasting and marital relationship that had been ongoing for over two years at the time of the decision. In this article, we will examine Matter of Peterson and what it means for establishing the bona fides of a 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.

First and Foremost, to bring your spouse to live in the U.S. as a permanent resident (green card holder), you must either be a green card holder or a U.S. citizen. Furthermore, there are certain other requirements depending on your current status.

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.

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.

On December 28, 2016, the Department of State (DOS) announced that as of January 1, 2017, it would no longer require original or “wet ink” signatures on submitted Forms I-864, Affidavit of Support.

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.

In scenarios in which an immigrant visa application 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 must overcome the presumption of public charge under INA § 212(a)(4).

Lawful permanent residents who have children during temporary visits abroad may, so long as the accompanying parent is admissible as an LPR, bring the child to the United States even though the child lacks an immigrant visa. This article will explain the rules for doing so.

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.

On July 27, 2006, The Adam Walsh Child Protection and Safety Act of 2006 took effect. The Adam Walsh Act is a broad piece of legislation designed to protect minors from sexual violence and to target perpetrators. Among its myriad provisions, the Adam Walsh Act amended provisions of the Immigration and Nationality Act (INA). In this article, we will examine the Adam Walsh Act prohibitions on the approval of family-based immigrant visa petitions filed by U.S. citizen and lawful permanent resident (LPR) petitioners who have been convicted of a “specified offense against a minor,” which is the most broad-reaching provision of the legislation involving immigration. The prohibition also extends to U.S. citizens filing K nonimmigrant petitions.

Under sections 204(a)(1)(A)(viii) and 204(a)(1)(B)(i)(II) of the Immigration and Nationality Act (INA), a U.S. citizen or lawful permanent resident (LPR) who has been convicted of a “specified offense against a minor” as defined in section 111(7) of The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act”) is generally barred from having a family-based immigrant visa petition approved on behalf of any family member. The definitions in section 111(7) of the Adam Walsh Act are codified at 42 U.S.C. 16911(7). This bar also applies to K-nonimmigrant petitions for fiancées of U.S. citizens or permanent residents. In this article, we will examine specified offenses against a minor involving video voyeurism.

On July 21, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017) . The decision dealt with the Adam Walsh Act, which restricts the ability individuals who have been convicted of certain specified offenses against a minor from filing immigrant visa petitions or K-visa petitions on behalf of family members. In its decision, the Board held that an offense may be a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Act even if the offense involved a police officer posing as a minor rather than an actual minor.

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.

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.

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.

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).

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.

On March 29, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016). Ruzku 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.

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.

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.

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,” (INA 212(a)(4)) 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.

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).

On September 20, 2017, the Board of Immigration Appeals (BIA) issued a published for precedent decision in the Matter of Rehman, 27 I&N Dec. 124 (BIA 2017). The case concerns determining whether a birth certificate that was not registered contemporaneously with a birth establishes a familial relationship by a preponderance of the evidence. The Board held that in determining whether such a birth certificate submitted by a petitioner establishes a familial relationship, adjudicators must consider the birth certificate itself, other evidence of record, and the circumstances of the case to determine if the petitioner sustained his or her burden.

The concept of “sham marriage” is well known in immigration law and discussed in detail in various articles on site. However, there is also a lesser-known concept of a “sham divorce,” which may arise in the context of immigration benefits that are available only to unmarried beneficiaries.On July 22, 1983, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983). The Board held that a divorce made for sole purpose of procuring an immigration benefits constitutes a “sham divorce” and is not recognized for immigration purposes. In this article, we will examine the factual and procedural history of Matter of Aldecoaotalora as well as the Board’s analysis and conclusions in the decision in order to understand the concept of a sham divorce in immigration law. In addition, we will look at subsequent citations to Matter of Aldecoatalora to illuminate how the precedent has been applied in other cases. Notably, we will examine the decision of the United States Court of Appeals for the Sixth Circuit in Bazzi v. Holder, 746 F.3d 640 (6th Cir. 2013) in detail.

On April 9, 2015, the Administrative Appeals Office (AAO) decision in Matter of Christos, Inc., 26 I&N Dec. 537 (AAO 2015) was published as a precedent decision. In Matter of Christos, Inc., the AAO addressed an alien who submitted false documents representing a nonexistent or fictitious marriage, but who never entered into, attempted to enter into, or conspired to enter into the marriage. The AAO held that, while the alien may be determined to have acted with the intent to evade the immigration laws, the alien is not, by virtue of the submission of the false documentation alone, considered to have “entered into” or to have “attempted to enter into” a marriage for purpose of section 204(c) of the Immigration Nationality Act (INA). However, the AAO also held that misrepresentations relating to a nonexistent or fictitious marriage may cause inadmissibility under section 212(a)(6)(C)(i) of the INA for fraud or misrepresentation of a material fact.

On December 12, 1983, the Board issued a published decision in the Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Matter of Laureano tied together existing precedents on the question of what constitutes a bona fide marriage that is valid for immigration purposes. Accordingly, Matter of Laureano serves as one of the most useful single decisions on the subject. Furthermore, the Board addressed in detail the “heavy burden” on a petitioner who had withdrawn a prior petition after an admission by one of the parties in the marriage that the marriage was fraudulent. In this article, we will examine the facts and procedural history of Matter of Laureano, the Board’s analysis and conclusions, and the lasting impact of the decision.

On October 5, 1988, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). First, the Board held that where an immigrant visa petitioner files a second marriage-based petition on behalf of a spouse after having an initial petition filed on behalf of that same spouse denied based on the finding that “the marriage was entered into solely to bestow an immigration benefit,” the petitioner will “bear[] a heavy burden of proof” in the subsequent petition. The Board then listed several ways in which a petitioner can be put on notice of evidentiary requirements. The Board then held that the record on appeal should be remanded if a petition is denied based on deficiency of proof, but the petitioner had not been put on notice of the deficiency and given a reasonable opportunity to address it, and then subsequently provides additional evidence on appeal to address the deficiency. However, if the petitioner was put on notice of the evidentiary requirements and given a reasonable opportunity to provide the evidence before the petition was adjudicated, the Board will not consider new evidence on appeal.

On November 19, 2018, the Board of Immigration Appeals (BIA) published an administrative precedent decision in Matter of Song, 27 I&N Dec. 488 (BIA 2018). The decision dealt with the eligibility for adjustment of status of an alien who had been admitted into the United States on a K1 fiancé visa, who had fulfilled the terms of the K1 visa, and who had subsequently divorced the petitioner. The Board held that an adjustment applicant in this scenario “must submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge under section 212(a)(4) of the Immigration and Nationality Act” (INA). In this article, we will discuss the factual and procedural history in Matter of Song, the Board’s analysis and conclusions, and what the decision means going forward.

On August 23, 1976, the Board of Immigration Appeals (BIA) published an immigration precedent decision in the Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976). The decision concerned a spousal immigrant visa petition filed by a petitioner who would reside in New York with his spouse but in a marriage that could not be entered into under New York law. The Board determined that the marriage was valid because (i) it was entered into in Georgia (where it was permitted), and because (ii) although the couple could not have entered into their marriage in New York, the marriage, having been legally entered into elsewhere, was not against the public policy of New York. The main precedent is that a marriage is valid for immigration purposes if it is not against the public policy of the state in which the couple will reside, even if the marriage could not have been legally entered into in the first place in that state. In this article, we will examine the factual and procedural history of Matter of Da Silva and the Board’s analysis and conclusions.

On February 15, 2019, the United States Citizenship and Immigration Services (USCIS) published a Policy Alert (PA) titled “Marriage Involving Minor(s).” The PA updates the USCIS Adjudicator’s Field Manual (AFM) policies on marriages involving minors. The Immigration and Nationality Act (INA) provides for no minimum age requirement for spousal petitions based on marriage. Thus, the AFM update guides adjudicators on how to evaluate Form I-130 petitions where either the petitioner or the beneficiary is a minor. Rather than establish entirely new policies, the AFM update clarifies key points of the USCIS’s policy on this issue. We will examine the AFM updates and related issues in this article.

On February 12, 1980, the former Immigration and Naturalization Service (INS) published a precedential decision in the Matter of Balodis, 17 I&N Dec. 428 (Reg. Comm. 1980). At issue was a K fiancée petition filed by a U.S. citizen petitioner on behalf of his first cousin. The petition was initially denied because the state of the petitioner’s domicile, Michigan, prohibited marriages between first cousins. However, the INS regional commissioner reversed that decision because Michigan recognized marriages between first cousins when they were lawfully entered into outside of the state. Because the regional commissioner concluded that the petitioner and beneficiary could legally marry outside of Michigan, he reversed the denial of the K visa petition on that basis. In this article, we will examine the factual and procedural history of Matter of Balodis and the Regional Commissioner’s analysis and conclusions.

On February 18, 1971, the former Immigration and Naturalization Service (INS) published a precedent decision in the Matter of Manjoukis, 13 I&N Dec. 705 (D.D. 1971). In the decision, the District Director denied a K visa petition filed on behalf of an alien who was 14 years of age because the laws of the petitioner’s state of residence, Michigan, did not recognize marriages involving individuals under the age of 16. This necessitated the denial of the petition because the K visa category requires the petitioner to marry the beneficiary within 90 days of admission. Notably, the decision implicitly recognized a presumption that, in the case of a spousal or fiancée petition for a beneficiary who resides abroad, it is presumed that the couple will reside in the state or territory in which the petitioner resides. In this article, we will examine the factual and procedural history of Matter of Manjoukis as well as the District Director’s reasoning and conclusions.

On September 14, 1967, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Zappia, 12 I&N Dec. 439 (BIA 1967). At issue was whether a marriage between first cousins was valid for purposes of an immigrant visa petition based on marriage. Specifically, the laws of Wisconsin prohibited marriages between first cousins, so the couple solemnized their marriage in South Carolina where such marriages were legal. The Board held that the marriage was invalid for immigration purposes because Wisconsin did not recognize first cousin marriages that were solemnized outside of the state for the purpose of evading Wisconsin’s prohibition of such marriages. In this article, we will examine the factual and procedural history of the case followed by the Board’s analysis and conclusions.

On March 18, 1952, then Acting Attorney General Phillip B. Pearlman issued published a precedential decision in the Matter of P-, 4 I&N Dec. 610 (A.G. 1952). The Acting Attorney General recognized the generally applicable rule that the validity of a marriage is governed by the law of the place of solmization. In this article, we will examine the Matter of P- decision and certain subsequent decisions distinguishing its rule for purpose of immigrant visa and fiancé(e) petitions based on marriage. We will also examine situations that are distinguishable from Matter of P-.

On April 12, 2019, the United States Citizenship and Immigration Services provided new guidance for visa interviews for spousal petitions involving at least one spouse who is a minor in its Adjudicator’s Field Manual. The new USCIS guidance on spousal petitions involving minors will generally require interviews before the approval of the Form I-130. These interviews are normally reserved for after the approval of the Form I-130 but before the approval of an application for adjustment of status (USCIS) or for an immigrant visa (Department of State where the beneficiary is seeking a visa at a consulate abroad). This interview requirement only adheres in cases where the Form I-130 appears to be otherwise approvable.

This article contains a link to our discussion of precedent decisions holding that a family-sponsored immigrant visa petition must be approvable at the time of filing.

On May 23, 2019, President Donald Trump issued a Presidential Memorandum titled “Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens.” The purpose of the memorandum is to direct relevant federal agencies to better enforce immigration sponsorship requirements and ensure that non-citizens do not receive means-tested public benefits for which they are ineligible under the immigration laws. In this article, we will discuss the directives in President Trump’s May 23, 2019, Presidential Memorandum.

On June 14, 2019, Acting Director of the United States Citizenship and Immigration Services (USCIS) Ken Cuccinelli issued a statement regarding President Donald Trump’s May 23, 2019, Presidential Memorandum titled “Enforcing the Legal Responsibilities of Sponsors of Aliens.” USCIS will begin notifying sponsors and sponsored aliens of the sponsorship rules and obligations more clearly.

On October 30, 2019, the United States Citizenship and Immigration Services (USCIS) enabled petitioners to complete and file the Form I-130, Petition for Alien Relative, online.

The K1 nonimmigrant visa allows U.S. citizens to petition for a fiancée to enter the United States in order to conclude a valid marriage. The petitioner and the K1 beneficiary are required to conclude a valid marriage within 90 days of the K1 beneficiary’s admission, after which the K1 beneficiary and any K2 derivatives may have their status adjusted to that of an alien lawfully admitted for permanent residence with conditions. In this article, we will examine what options a U.S. citizen petitioner and his or her spouse have available in the event of an untimely marriage outside the 90-day timeframe allotted by statute.

The BIA held that an alien who had been the beneficiary of a K1 visa petition based on a sham engagement was subject to the INA 204(c) marriage fraud bar.

We examine what constitutes a valid marriage for immigration purposes, including scenarios involving same sex marriage, common law marriage, and legal separation.

Humanitarian reinstatement is a discretionary form of relief wherein the USCIS can “reinstate” an approved Form I-130 after the death of the U.S. citizen or lawful permanent resident petitioner.