Family Based Immigration
Procedures for family based immigration will vary, depending on whether the foreign relative is adjusting status in the United States, filing on the basis of marriage, or processing from an embassy or consulate outside the United States. Permanent residence cards 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 may file petitions for permanent residence for their spouses, parents, or children. Visas for these relatives will always be available, and no wait for a visa number will be necessary.
Permanent residents may file preliminary petitions on behalf of their spouses and unmarried children, but the relatives must wait for a visa number to become available before completing the permanent residence process. 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, the foreign relative will not have permission to wait and must depart the United States to consular process the immigrant visa (see below).
Inspection at the Border and Process Location
Whether a person presented a valid passport to an immigration officer at the time entry will determine how and where the case will be processed. Generally speaking, persons 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 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 prepares clients for the interview and accompanies them upon request.
Most persons who did not enter the United States with inspection will not be permitted to apply for permanent residence in the United States, but must 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 the foreign relative committed certain crimes or other immigration violations, he or she should consult with an immigration attorney for a recommendation as to whether a waiver will be possible or appropriate.
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 to a spouse. As a result, interviews are mandatory for marriage based permanent residence cases, and evidence regarding the genuineness of the marriage must be submitted.
Petitions 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, and the couple will need to jointly file another petition to remove the conditions between 21-24 months of the date the permanent residence became effective. This requirement applies whether the foreign spouse adjusts status in the United States or immigrates from abroad. Should this petition not be timely filed, the spouse’s permanent residence will be terminated and the spouse will be subject to removal from the United States. Once the conditions are removed, the foreign spouse will receive a new permanent resident card valid for ten years.
Should the couple no longer be married at the time the petition is to be filed, the foreign spouse may apply for a waiver of the joint filing requirement, depending on the circumstances.
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