Family-Based Immigration

Family-Based Immigration – US citizens and permanent residents can file for permanent residence (Green Card) and visas for specific immigrant family members.

Procedures for family-based immigration (Permanent Residence (Green Card) & Visas) will vary, depending on whether:

  1. The foreign relative is adjusting status in the United States
  2. Filing on the basis of marriage, or
  3. Processing from an embassy or consulate outside the United States (consular processing).

Permanent residence cards (Green Card) will be issued with validity periods of two years or ten years, depending on whether the adjustment is based on marriage or a different family relationship.

Who May File Petitions for Permanent Residence and Visa Timeframes

U.S. Citizens

U.S. citizens may file petitions for permanent residence on behalf of:

  • spouses
  • parents
  • or children.

Visas for these relatives will always be available, and no wait for a visa number will be necessary.

Permanent Residents

Permanent residents may file preliminary petitions on behalf of:

  • spouses
  • unmarried children

Foreign relatives may not work in the United States while the petition is pending.  They will also need to wait for a visa number to become available before they may complete the permanent residence process.

Wait Times

Wait times for a visa vary, depending on the type of your family relationship and where the family member was born. Currently, if the foreign relative is from Mexico, India, China, or the Philippines, wait times will be longer. If a visa number is not available at the time the petition is filed, a foreign relative in the United States will not have permission to wait in the United States for the visa number and should depart to consular process the immigrant visa (see below).

Inspection at the Border and Process Location – Legal Admission

Whether an immigrant presented a valid passport to an immigration officer for inspection at the time of entry will determine how and where the case will be processed. Generally speaking, those who presented a valid passport to an immigration officer at the time of their entry to the United States may apply for family-based permanent residence (Green Card) within the United States. Subsequent to a background check, applicants will be interviewed at their local U.S. Citizenship & Immigration Services (USCIS) district office. Dayna Wheatley assists by filing the applications and preparing clients for the interview, accompanying them upon request.

Entering without Inspection

Most persons who did not enter the United States with inspection will not be permitted to apply for permanent residence (Green Card) in the United States, but must depart and interview for their immigrant visa at a U.S. consulate.

Some persons who did not enter the United States with inspection may adjust status to permanent resident if an employer or family member filed an immigration petition on their behalf prior to April 30, 2001. An additional penalty fee of $1,000.00 will apply.

Criminal or Immigration Violation History

If immigrants have criminal convictions or other immigration violations, they should consult with an immigration attorney for a recommendation as to whether a waiver will be possible or appropriate in their case.

Marriage-Based Permanent Residence

A U.S. Citizenship & Immigration Services (USCIS) officer must decide that the applicant’s marriage is genuine before granting permanent residence (Green Card) to a spouse. As a result, interviews are mandatory for all marri­age-based permanent residence cases, and the couple must provide evidence regarding the genuineness of the marriage.

Petition to Remove Conditions from Permanent Residence

If the married couple has been married for less than two years at the time the permanent residence is granted, the foreign spouse will only receive “conditional” permanent residence valid for two years, and the couple will need to jointly file another petition to remove the conditions between 21­-24 months later. This requirement applies whether the foreign spouse adjusts status in the United States or immigrates from abroad.  Once the conditions are removed, the foreign spouse will receive a new permanent resident card valid for ten years.

Should this petition not be filed on time, the spouse’s permanent  residence will be terminated and he or she could be removed (deported)  from the United States.

Should the couple separate or divorce prior to the time the petition is to be filed, the foreign spouse should immediately consult with an attorney to discuss waiver options for the joint filing requirement.

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