9. Dependents of Immigrant Visa Benficiaries
With family you want to enhance and promote, foster unity, give a hand up, protect and defend, make free and safe, restore, guide and pass the torch. From generation to generation the presence and advancement of foreign nationals in the U.S. have not been a sprint, or even a marathon, but a relay race, the baton being handed from one member of the extended family to the next.
2. The Fiancee Visa
A U.S citizen is entitled to submit a K-1 petition which will set in motion a multi-step process, at the end of which the fiancee will be interviewed in the home country. A resulting immigrant visa permits the fiancee to enter the U.S. to marry the U.S. citizen within a deadline and to seek employment . If the fiancee has minor children, they can be included in the process (K-2 visa). The visa leads directly to the green card (LPR).
In order for a spousal petition (I-130) to be successful, the underlying marriage between the United States citizen and the foreign national spouse must be “bona fide”. Over the years there have been several statutory efforts to thwart, detect and punish false “marriages for money”. Sham marriages pose a great danger to the parties by way of penalties and loss of immigration benefits. The I-130 interview process can be daunting, and the interviewer has time-tested techniques to detect fraud.
A bona fide marriage can take many forms. The differences between the spouses, including age, religious belief and even familiarity, do not in themselves defeat he bona fide nature of the marriage. Documentation, financial records and photographs are solicited from the couple in the course of the process.
A marriage taking place while one of the spouses is in removal proceedings is always scrutinized by a higher burden of proof as to its bona fide nature.
A recognized marriage includes a marriage by common law, as is the case in Colorado, documented by self-solemnization.
A spousal petition based on a marriage of less than 2 years at the time of petition filing results in a “conditional” green card for which there exists a process to remove the condition after 2 further years of marriage following issuance of the conditional card. As the 2 year anniversary approaches the action required to remove the condition depends upon the prevailing state of the marriage and other factors. Intervening divorce, abuse by the petitioner and other hardships can permit the conditional green card holder to proceed alone for removal of the condition.
If the US citizen spouse dies while a spousal petition (I-130) is pending, the widowed foreign national spouse can continue the process by converting to an I-360 process. If no petition was pending, the process begins with the I-360. The filing must occur within 2 years of the death. The couple must have been married (not legally separated) at the time of death.
Marriage to a U.S. citizen after entry on a B-2 visa is treated specially through what is known as the 30-60-90 days rule in regards the foreign national’s non-immigrant intent.
The Violence Against Women’s Act (VAWA) (which applies equally to male spouses) is meant to enable the foreign national spouse of an abusive U.S. citizen or permanent resident to break away from the abusive partner and apply for VAWA treatment which, if the many eligibility requirements are met, can lead to the green card for the foreign national and children.
The Child Status Protection Act (CSPA) was intended to overcome the unfairness to a child caused by bureaucratic delays which led to the child’s passing a 21st birthday, and thereby losing the special benefit reserved for minor children. As a result, when the benefit is ultimately ruled upon by the bureaucracy, the amount of time it took to process the benefit is subtracted from the individual’s age at that time.
A US citizen can petition for a foreign national stepchild when the marriage creating this step relationship occurs before the child’s 18th birthday.
US citizens can petition for an adopted child when the adoption occurs before the child’s 16th birthday. There is a special provision for the adopted child’s siblings.
5. New Benefit: Same Sex Marriage Petition
By virtue of a 2013 Supreme Court holding and follow-up executive action there is no longer a distinction made as to the genders of a married couple in the immigration law context, including a U.S. citizen spouse’s petitioning for the green card for the foreign national spouse. Furthermore the government is reviewing denied or delayed petitions for the the new treatment, directing petitioners to promptly inform the government of such petitions.
6. Family Petition for Green Card (LPR)
A U.S. citizen or lawful permanent resident is entitled to submit a family petition for the green card for certain family members residing either abroad or in the U.S.
Following the government’s receipt of the petition the waiting time for the grant of the immigrant visa through an interview abroad or the green card by adjustment of status in the United States essentially depends on the classification of the beneficiary in keeping with the beneficiary’s age, marital status and relationship to the petitioning family member.
The beneficiary must be eligible for the grant. Reasons for ineligibility (which are subject to waiver upon application) include unlawful presence in the U.S. and certain criminal convictions.
Essentially the State Department maintains 4 queues for classification of visas, including special limitations on certain countries. One can determine the time remaining for the availability of a pending visa via the Visa Bulletin. There is no waiting time for immediate relative petitions (spouses, children and parents of U.S. citizens).
The K-3 visa is available to the spouse of a U.S. citizen residing abroad while an I-130 petition is pending awaiting approval. The visa’s purpose is to permit the married couple to wait together for approval of the petition in the U.S. leadin to the adjustment of status process.
Although an immediate relative (parent, spouse or minor child) of a U.S citizen who entered the U.S. lawfully, but then overstayed, has accrued unlawful presence, nonetheless the U.S. citizen may petition for the green card for the relative through adjustment of status process without the immediate relative’s having to leave the U.S.
It is a dramatically different process for the relative who did not enter lawfully. That relative must use consular processing in the home country, seeking a waiver of the unlawful presence there. A recent executive order has somewhat ameliorated the process so that now a Colorado resident-beneficiary of an immediate relative petition may upon request have an initial interview in the USCIS’s Centennial offices to avoid the familial disruption formerly caused by the need to travel abroad for the interview. However, at best petition approval in the U.S. is provisional, subject to the the beneficiary’s returning to the home country for a finalization process which hopefully would result in the grant of an immigrant visa.
7. Military Petition
Member of the U.S. military and veterans, pursuant to a recent significant presidential order utilizing parole in place (PIP), may now petition a parent, spouse or child for the green card despite the beneficiary’s unlawful presence in the U.S. The PIP process can rescue military families members once under the threat of arrest, detention and removal from the U.S.
8. Dependents Of Non-immigrant Visa Holders
Most non-immigrant visas permit the spouse and minor children of the non-immigrant visa holder to reside in the U.S. during the the visa holder’s stay here, but not all such derivative visas allow dependents to to be work-authorized.
9. Dependents of Immigrant Visa Beneficiaries
Derivatives of a beneficiary in the 4 Visa Bulletin classifications (but not immediate relative beneficiaries) are also eligible for an immigrant visa, either by accompanying the beneficiary or by later following to join. Derivatives are minor children, spouses, and parents.
10. Helping Defend against the Removal Process; Aiding Lawful Return
If a family member has been arrested and is being held in ICE detention on immigration charges, the whereabouts of the detained family member, if not already known, should first be determined by the family. Once the family member’s location is known, the family has the option of retaining counsel to proceed with the bond and master’s hearings. For a description of the removal process refer to the Individual Page #*.
A lawful return of a family member to the U.S. following an order of removal or voluntary departure depends upon the terms of the order, the actions of the individual since departure, and the length of the intervening time. There exists a process whereby, through waiver or permission to reapply or simple passage of time, an individual may return lawfully to the U.S. Family considering the lawful return process should contact an experienced immigration law attorney to discuss all available options. For a description of the return process refer to the site’s Individual Page #*.