Family Immigration

FAMILY IMMIGRATION

The Immigration and Nationality Act is structured to emphasize the significance of family unification and thus allows for permanent residence eligibility for certain family-based groups. The preference method is a system based on statistical analysis to evenly distribute the limited number of immigrant visa numbers available each year. Obtaining an immigrant visa number is the first step in the immigration process and it means that a place has been reserved for you although the date of admission may be undeterminable. The documentation required for a family-based petition as a permanent resident is the same for an immediate relative and family preference applicants.

The guidelines are as follows:

Immediate Relatives:

§201(b) of the Immigration and Nationality Act (”INA”) defines “immediate relatives” to include:

a. spouses,

b. children (under the age of twenty-one), and

c. parents of U.S. citizens (if the citizens are at least 21 years old).

This category is reserved for immediate relatives of United States citizens, not permanent residents. There is No limit to the number of immediate relative visas that may be issued in a calendar year.

Spouses:

In order to be determined a spouse and obtain immigration benefits a, there must be a valid and subsisting marriage between the parties. Although subsisting is not easily defined, both parties living together and have frequent communication is usually sufficient to meet this standard. Marriage is valid for immigration purpose if it is recognized by the law of the State or country where it occurs. Marriage between persons of the same sex is invalid. Proxy marriages are invalid unless the marriage has been consummated.

A marriage that is legally valid may still be deemed fraudulent for immigration purposes by the United States Citizen and Immigration Services if it is determined to that it was entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. If a religious ceremony in and of itself is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. If a couple entered into a marriage in good faith believing it was valid, it may be deemed valid by the United States Citizen and Immigration Services even though it has some deficiencies.

The marriage must be legally subsisting at the time that the immigration status is requested. However, this requirement is relaxed for spouses of deceased United States Citizens. If the couple is legally separated, the alien no longer qualifies as a “spouse” for immigration purposes even through the couple has not obtained a final divorce.

An alien spouse may be granted immediate relative status if he or she was the spouse of a U.S. citizen for at least two years at the time of his or her death and at that time not legally separated, provided the alien spouse files a visa petition as an immediate relative within two years and has not remarried. This rule is applicable even if the deceased spouse was not a U.S. citizen for the entire two-year period before death. However, the deceased spouse must have been a U.S. citizen at the time of his or her death.

Children:

General

For the purposes of family-based immigration, a “child” is defined in the Immigration and Nationality Act under §101(b)(1) as follows:

A. a child born in wedlock;

B. a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

C. a child legitimated under the law of the child’s residence or domicile, or under the law of father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

D. a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;

E. a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or

F. a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for immigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child’s proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States:

Furthermore, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under the Immigration and Nationality Act.

The parent-child relationship must continue to exist at the time that immigration benefits are requested. A child includes only an unmarried person under the age of 21. The child must be both unmarried and under 21 at the time the visa is issued by a consulate and at the time that he or she applies for entry to the United States. If the child marries or becomes 21 after the visa is issued and before he or she applies for entry, he or she becomes disqualified for immediate relative status. The Child Status Protection Act provides for certain exceptions to this age-out problem.

Parents:

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old. “Parent” means a parent who is such by reason of his or her relationship to a “child” within the statutory definition of the term. However, the “child” must have qualified as such within the statutory definition at the time their relationship was established and the parent-child relationship must continue to exist at the time that the immigration benefit is sought. Family-based preference categories apply to family immigrants, other than immediate relatives. The first preference category consists of unmarried sons or daughters of United States citizens. The second preference family-based category deals with relatives of permanent residents of the United States and is divided into two subgroups each with a separate waiting list for available visas: (a) spouses and minor children of permanent residents, and (b) unmarried sons or daughters (but not their children) of permanent residents. The third preference category is for a married son or daughter of the United States citizen. The fourth preference category permits U.S. citizens over the age of twenty-one to petition their brothers and sisters for permanent residence.

All these preference categories are subject to annual visa limits. Available visas are issued to beneficiaries in accordance with the date in which their petition for permanent residence is filed. This date is referred as the "Priority date”.

Preference categories for relatives of permanent residents have longer waiting times than preference categories for relatives of United States citizens. As a result of a higher demand for immigrant visas from India, Mexico and the Philippines, they are subject to country-specific annual limits. Country of birth is the deciding factor instead of citizenship. For Example Canadians born in one of these countries will be placed on the longer country-specific waiting lists.

Priority dates are only an approximation so the actual approval date can be many years later. The rate of progression for priority dates often varies. The fiscal year ends on September 30th and as the year comes to an end priority dates are sometimes pushed to a later time to keep visa issuances within the annual numerical limitation.

Derivative Status for Spouses & Children of Family Based Immigrants:

The spouse or child of a preference immigrant accompanying or following to join him or her is entitled to the same status and the same order of consideration as the principal immigrant (“derivative status”). The derivative classification of such spouse or child attaches immediately upon approval of the principal alien’s classification, and requires no separate visa petition.

This derivative status is not available for a spouse or child of an immediate relative. In other words, the alien spouse or child of an immediate relative does not automatically acquire permanent residence when the principal applicant obtains such status. The children of a widow or widower of a United States citizen is an exception to the rule. Another exception is an alien child of the principal beneficiary who is under the age of 18 at the time of the principal beneficiary’s marriage to the petitioner will qualify as a stepchild. However, a separate visa petition must be filed for each immediate relative.

 

DREAM Act

The President placed his stamp on Immigration by circumventing the DREAM Act legislation proposed in Congress and by Executive Order assisted young people that are undocumented aliens. The question will be asked "Was this politically motivated? The answer is yes. However, notice that it only affects a small range of persons and if you do not fit the criteria, there will be no relief. If you are rejected in an exercise of "Discretion", there are no appeal rights. The President needs to attract the electorate in favor of Immigration but he cannot turn away voters' against illegal immigration. This Executive Order may be modified at a later date but is an essential first step that helps our country's youth. The following paragraph is a quote from the Secretary of the Department of Homeland Security regarding the new policy noting the limitation on such ORDER.

"This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here."