Columbus Family Visa Attorneys

The family visa is available for close relatives of U.S. citizens and lawful permanent residents. A U.S. citizen or lawful permanent resident can act as a sponsor for their close household members for immigration purposes. The number of family visas available annually is unlimited for certain immediate relatives of U.S. citizens, but capped for the relatives of U.S. permanent residents and the extended household members of U.S. citizens.

IMMEDIATE RELATIVE PETITIONS

Columbus Family Visa AttorneyThe immediate relatives of U.S. citizens are eligible for an unlimited number of family visas each year. The United States Citizenship and Immigration Services (USCIS) allows U.S. citizens to file an unrestricted number of Immediate Relative Petitions on behalf of their spouses, unmarried children under the age of 21, orphans adopted in the U.S. or abroad, and parents (provided the sponsor is at least 21 years old). Grandparents, aunts, uncles, in-laws and cousins are not eligible to sponsor relatives for immigration.

FAMILY PREFERENCE CATEGORIES

Certain family members of lawful permanent residents and the extended family members of U.S. citizens are eligible for a limited number of household visas each year, allocated pursuant to preference categories.

  • First Family Preference (F1)

    The first family preference category is reserved for the unmarried children of U.S. citizens (any age) and their children. A total of 23,400 visas are available each fiscal year for individuals in the first family preference category.

  • Second Family Preference (F2)

    The second family preference category is for spouses, minor children and the unmarried children (over the age of 20) of lawful permanent residents. Of the 114,200 visas available in the second preference category, a minimum of 77% will be allotted to spouses and minor children each year.

  • Third Family Preference (F3)

    The married children of U.S. citizens, as well as their spouses and children, are eligible for the third family preference category which is capped at 23,400 visas annually.

  • Fourth Family Preference (F4)

    The brothers and sisters of U.S. citizens, as well as their spouses and children, are eligible for the fourth family preference category. The U.S. citizen must be at least 21 years old to sponsor a relative for one of the 65,000 visas available annually in the fourth preference category.

SPONSOR ELIGIBILITY

To sponsor a relative for immigration to the U.S., an individual must meet the following requirements:

  • Be a U.S. citizen or lawful permanent resident;
  • Be at least 18 years old in order to sign the Affidavit of Support (described below); and
  • Have a U.S. residence or domicile.

Though the U.S. immigration laws do not specify a minimum age required to sponsor relatives for immigration, to sign the Affidavit of Support and legally acquire a domicile one must be at least 18 years of age.

APPLICATION PROCESS

To apply for a family visa, the U.S. citizen or lawful permanent resident sponsor must take the following steps with the USCIS:

  • File and receive approval of an I-130 Petition for Alien Relative;
  • Demonstrate their ability to financially support the relative(s) they are sponsoring at, minimally, 125% above the mandated poverty line; and
  • Accept legal responsibility for financially supporting their sponsored relative(s) by executing an Affidavit of Support (Form I-864).

Once the U.S. citizen or lawful permanent resident sponsor has completed the steps above, the sponsored relative must apply for an immigrant visa at a U.S. Consulate or Embassy abroad or apply for adjustment of status if in the United States.

In the event there are more qualified applicants than family visas available, the USCIS will issue visas (in chronological order according to each petition’s filing date) until the category has been exhausted. The filing date of the I-130 Petition for Alien Relative establishes an applicant’s priority date for immigration purposes and the applicant will not be issued an immigrant visa until their priority date is current.

FAMILY BASED VISA TOPICS

Conditional Residency And Its Removal

Conditional Residency And Its Removal

When a U.S. citizen or lawful permanent resident marries a foreign national, the foreign national can almost immediately apply for a green card.  However, permanent residence granted through marriage is conditional for two years if the couple has been married less than two years on the date of the foreign national spouse’s adjustment of status.  The United States Citizenship and Immigration Services (USCIS) defines a conditional resident as any foreign national “granted permanent resident status on a conditional basis, who is required to petition for the removal of the set conditions before the second anniversary of the approval of his or her conditional status.”  The U.S. citizen/lawful permanent resident and foreign national spouse must jointly file Form I-751, Petition to Remove the Conditions of Residence, to make the the foreign national’s residence truly permanent.

General Requirements For Removal Of Conditions

To prove the conditions of residence should be removed, the married couple must submit evidence to the USCIS that the marriage was entered in good faith, including:

•    Birth certificate(s) of children born to the marriage;
•    Lease or mortgage contracts showing joint occupancy and/or ownership of the couple’s communal residence;
•    Financial records showing joint ownership of assets and liabilities, such as joint savings and checking accounts, joint federal and state tax returns, insurance policies that show the other spouse as the beneficiary, joint utility bills, joint installments, or other loans;
•    Affidavits from two people that have known the married couple since conditional residence was granted and have personal knowledge of their marriage and relationship; and/or
•    Any other documents to establish the marriage was not entered into in order to evade U.S. immigration laws.

The petition to remove conditional residence must be filed during the last 90 days of the foreign national spouse’s conditional status.  If the conditions to residence are not removed before the two year conditional period expires, the foreign national will lose their green card status.

Waiver Of Joint Filing Requirement

Under certain circumstances, the foreign national spouse may be able to file Form I-751 individually, on their own behalf.  The foreign spouse may file for a waiver of the joint filing requirement if they entered the marriage in good faith and one of the following conditions are met:

•    Their spouse subsequently died;
•    The marriage was later terminated due to divorce or annulment;
•    The foreign national has remained married, but has been battered or subjected to extreme cruelty by their U.S. citizen or permanent resident spouse; or
•    The termination of status and removal would result in extreme hardship.

A waiver of the joint filing requirement will not be granted if Form I-751 is filed based on a termination of the marriage, but the foreign national spouse is only separated from their spouse, or divorce or annulment proceedings are still pending.  The marriage must be fully terminated in order to file for a waiver of the joint filing requirement pursuant to the termination of marriage provision.

Interview Requirement

According to U.S. immigration law, the married couple will be required to appear for an interview at the USCIS to remove the conditions of residence.  However, based upon the evidence submitted with Form I-751, the USCIS Regional Director may waive the interview requirement at their discretion.  So long as the petition fully demonstrates, and the USCIS Regional Director is satisfied, that the marriage was entered in good faith, the interview requirement will be waived.  If the USCIS Regional Director does not believe the marriage is valid, they will require the District Office to conduct an interview prior to removing the conditions of residence.

What Should You Do If Your Family Petition Is Denied?

What Should You Do If Your Family Petition Is Denied?

U.S. Citizens or lawful permanent residents of the United States can sponsor certain immediate family members for immigration to the United States.  The U.S. Citizen or lawful permanent resident sponsor must file a family petition on behalf of their foreign national relative.  Once approved, the foreign national relative will be on track to receive their green card and live permanently in the United States.  What happens, though, if the family petition is denied?

Speak To An Experienced Immigration Attorney

It is highly recommended for anyone facing a family petition denial to speak with an experienced immigration attorney to fully understand their options, including an appeal, refiling of the family petition or other potential remedy.  A family petition, specifically Form I-130 Petition for Alien Relative, may be denied for a variety of reasons.  The Adjudicator’s Field Manual (AFM) of the United States Citizenship and Immigration Services (USCIS) states that the “adjudication of a relative petition deals with two issues: whether the petitioner has standing to file the petition and whether the beneficiary has the requisite familial relationship to qualify for the classification being sought.”  Thus, any denial of a family petition will stem from a failure to establish one or both of those items.  The notice of denial will indicate the reasons for the denial, as well as explain the process and timelines for an appeal.

Appeal To The Board Of Immigration Appeals

If an appeal is available, instructions for pursuing the appeal will be included in the notice of denial.  Form I-130, Petition for Alien Relative, is appealable to the Board of Immigration Appeals (BIA).  An appeal to the BIA must be filed on Form EOIR – 29 within 30 days of the final USCIS decision and submitted to the USCIS office that originally denied the petition.  Form EOIR – 29 can only be submitted by the petitioning party and not the beneficiary.  Accordingly, Form EOIR – 29 must be signed by the petitioner only.

The appeal will be reviewed by a one member BIA panel, unless the petitioner can provide a specific factual or legal basis that warrants review by a three member panel.  Historically, only the following situations meet the threshold for obtaining review by a three member panel:

•    The need to establish a precedent construing the meaning of laws, regulations or procedures;
•    The need to review a decision by the USCIS that does not conform with established law or precedent;
•    The need to resolve a case or controversy of national importance; and/or
•    The need to reverse a decision of the USCIS, other than a decision by a single BIA member that is plainly consistent with and required by intervening Board or judicial precedent, an intervening Act of Congress or an intervening final regulation pursuant to 8 C.F.R § 1003.1(e)(5).

Petitioners may be represented by legal counsel on appeal to the BIA and a brief in support of the petitioner’s appeal may be filed no later than 21 days after the appeal notice is issued.  It is  important to note that the USCIS will have seasoned government attorneys representing their interests and, therefore, it is in the petitioner’s best interests to be represented as well.  Technically, the BIA cannot consider information that was not included in the original petition.  However, if additional or new evidence is available at the time of appeal, it should be included with the appeal brief.  Depending upon how compelling the new or additional information is, the BIA may remand the case to the USCIS for further consideration as opposed to upholding or reversing the original decision.  The BIA’s decisions are binding on all Department of Homeland Security Officers and Immigration Judges, but subject to review by the U.S. Attorney General and the Federal courts.

Refile Form I-130, Petition For Alien Relative

In lieu of an appeal, or sometimes even after an unsuccessful appeal, a petitioner may be able to refile Form I-130, Petition for Alien Relative, on behalf of their family member.  The USCIS will consider a petition abandoned if additional evidence was requested and the petitioner failed to respond within the allotted timeframe.  The petitioner may have failed to respond for various reasons, including the unavailablity or non-existence of the evidence requested.  Moreover, even if the petitioner responded in a timely manner, the USCIS may still have found the evidence  provided insufficient to approve the petition.

Refiling Form I-130 Petition for Alien Relative may be a good option if the original petition deficiency can be cured by the availablity of new or additional evidence.  The circumstances surrounding the original Form I-130 filing will need to be fully disclosed and explained in any subsequent petition, but such a disclosure will not automatically result in a denial of the new petition.  It is important to note, however, that any attempt to hide or disguise a previously unsuccessful petition will result in an automatic denial of the newly filed petition.

Other Remedies

There may be additional avenues or remedies available depending upon the unique circumstances of each individual case.  An experienced immigration attorney is best qualified to help develop an alternative, case-specific strategy in the event a family petition has been denied.