Immigration for Spouses Parents and Children

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A US citizen or resident may petition for a relative to gain US residence. The delay in gaining residence depends on the petitioner's status, the beneficiary's country of birth and the family relationship.

Both US citizens and permanent residents may file a petition for a foreign national spouse, parent, or child to immigrate to the United States permanently.  If the petitioner is a US citizen, even if the foreign national spouse, parent, or child overstayed on a tourist visa, or while in other temporary status, usually the family member may obtain US permanent residence without paying a fine and with relatively little complication.

A child must be under age 21 at the time you file the petition and a visa number must be available to the child before she turns age 21.  The Child Status Protection Act (CSPA) protects children who turn 21 while USCIS or the State Department processes an application for residence, but CSPA does not protect a child who turns 21 before she is eligible to adjust status.

Congress passed the first immigration quota system in 1921 that restricted the number of immigrants admitted from any country annually to three percent of the number of residents from that same country living in the United States as reflected in the 1910 US census.  Under the 1921 law roughly 70 percent of all quota numbers were allotted to the nationals of the United Kingdom, Ireland and Germany and most went unusued.  All other nationals were made to share the remaining 30 percent of visa numbers and were subject to very long queues.

Congress amended the Immigration and Nationality Act on October 3, 1965 (Hart-Celler Immigration Bill) to reorient the quotas to apply based on how many applicants from each country applied rather than with regard to the demographic make up of the US population.

For Whom Can You File a Family Petition?

A US citizen may file a petition for a spouse, parent, child, brother or sister.  A US permanent resident may file a petition for a spouse or child, but not a parent, brother or sister.  A "child" as defined by law is is only a child who is under age 21 and unmarried at the time a visa number is available.  8 U.S.C. 101(b)(1).  A child who is married is called a "married son or daughter" and only US citizens may petition for married sons or daughters.  Permanent residents may petition for unmarried sons or daughters (children age 21 and older who are not married), but may not petition for a married son or daughter.

It is possible to file an I-130 petition for a stepchild, but only if the marriage that created the relationship occurred before the child's 18th birthday.  8 U.S.C.101(b)(1)(B).  The child must also be under age 21 at the time a visa number is available to be classified as a "child" rather than a married or unmarried son or daughter.

It is also possible to file an I-130 petition for an adopted child, but only if the adoption was legally complete before the child's sixteenth birthday and the child has been in the legal custody of, and has resided with, the adopting parent for at least two years.  8 U.S.C. 101(b)(1)(E)(i).  Additionally, if a US citizen or resident adopts a foreign national child, that child's natural parents may never receive an immigrant visa based on a petition filed by the adopted child.

It is not possible to petition for a grandparent, grandchild, nephew, niece, uncle, aunt, cousin or an in-law.

Petitioning for Spouses

A US citizen or permanent resident who petitions for a spouse must demonstrate by a preponderance of the evidence that the marriage is bona fide - that is to say that it was entered into in good faith and for the purpose of love and companionship, to "establish a life together" and not for immigration purposes.  If the marriage later suffers problems including informal separation or other difficulty, this is not relevant to a determination of whether the marriage was bona fide for immigration purposes. Dabaghian v. Civiletti, 607 F.2d 868 (1979).  But USCIS cannot grant permanent residence on the basis of a marriage that was legally terminated as of the date that the immigration benefit is to be conferred. Matter of Boromand, 17 I.&N. Dec. 450, 453 (BIA 1990).  If the spouses separated under a formal, written agreement before USCIS confers an immigration benefit, the benefit is not lawful. Matter of Lenning, I.&N. Dec. 476 (BIA 1980).

The 1986 Immigration Marriage Fraud Amendments added important rules to the spousal petition process including prescribing two years of "conditional permanent residence" for spouses who were married less than two years at the time the foreign spouse receives permanent residence.  INA 216.  A foreign national spouse who receives conditional permanent residence must file an I-751 petition to remove the condition within 90 days of the two year anniversary of the first day that foreign national received the spouse-based permanent residence.  During this 90 day window, the foreign spouse must jointly file a petition to remove the condition on permanent residence signed by the foreign spouse and the US spouse, or qualify for an exception.  There are three exceptions that allow the foreign spouse to file the I-751 petition by herself where she can demonstrate by a preponderance that:

  1. The marriage ended in divorce and the foreign spouse demonstrates that the marriage was bona fide at the time it was entered into
  2. The foreign spouse demonstrates that she was subjected to battery or extreme cruelty, or
  3. The foreign spouse demonstrates that she will suffer extreme hardship i removed to her home country

The foreign spouse's period of conditional residence counts towards the residence requirement for naturalization.  INA 216(e).

The penalty for marriage fraud for immigration purposes is a maximum of five years in prison and a $250,000 fine.  INA 275(c).  Foreign nationals found to have committed immigration marriage fraud are also a lifetime bar to obtaining US residence based on a family petition or employment-based petition for life.  204(c).

Congress also made it more difficult for those who marry during removal proceedings.  While the customary burden of proof for a spousal petition is to prove a bona fide marriage by a preponderane of the evidence (which means  more likely than not), those who marry while one spouse is in removal proceedings must demonstrate by clear and convincin evidence that the mrriage is bona fide.

A foreign national who gained permanent residence through a previous marriage and is not yet a US citizen may not petition for a later spouse based on marriage unless five years have passed since the foreign national spouse became a permanent resident, or the foreign national spouse seeking residence etablishes the bona fides of the marriage by clear and convincing evidence.  INA 204(a)(2)(A).

Petitioning for Adult Children

Filing petitions for adult children can be tricky.  A US citizen may file a petition for an adult son or daughter who is single or married.  And if a US citizen files a petition for an unmarried adult child and that child later marries, she merely shifts to a different preference category with a longer wait.  A permanent resident may only file a petition for an adult child who is unmarried (category F2B) and if the child marries before becoming a permanent resident, the petition is automatically revoked as of the date filed.  A common problem with permanent residence petitions filed by a permanent resident parent for an adult child is that the child sometimes marries.  An I-130 petition filed by a permanent resident for an unmarried adult child is automatically revoked as of the date of approval upon marriage of the son or daughter classified under INA 203(a)(2).  8 CFR 205.1(a)(3)(I).

Section 6 of the Child Status Protection Act provides that an unmarried son or daughter of a permanent resident (F2B) automatically converts to an unmarried son or daughter of a US citizen (F1) upon the permanent resident parent becoming a US citizen.

So the date that an unmarried son or daughter marries determines whether they retain their priority date.  If the son or daughter marries before the parent petitioner becomes a US citizen, the petition is revoked as of the date of approval and the son or daughter loses position in queue and may not retain the existing priority date.  If the son or daughter marries the day after the permanent resident parent becomes a US citizen, the petition is automatically converted from the unmarried son or daughter of a US citizen (F1) to the married son or daughter of a US citizen (F3) and retain the original priority date.

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