U.S. citizens (USCs) and lawful permanent residents (LPRs) may petition for certain relatives to obtain lawful permanent residence in the U.S.  These relatives fall into six different categories:

  • Immediate relatives (IRs):  parents, spouses and children of USCs.[1]
  • Category 1:  unmarried sons and daughters of USCs.[2]
  • Category 2A: spouses and children of LPRs.[3]
  • Category 2B:  unmarried sons and daughters of LPRs.[4]
  • Category 3:  married sons and daughters of USCs.[5]
  • Category 4:  siblings of USCs.[6]

Petitioners may sponsor the spouses and children of beneficiaries sponsored in categories 1 through 4 as derivative beneficiaries.  To begin, the USC files an I-130 Petition for Alien Relative with USCIS, along with evidence documenting the relationship.

Once CIS approves an I-130, all beneficiaries but IRs must generally wait for their priority dates to become current.  In I-130 cases, the priority date is the date when CIS received the I-130.  INA sections 201 and 203 determine the priority dates. These provisions govern the worldwide Immigrant Visa (“IV”) allotments to qualifying relatives.

Every month, the DOS publishes a Visa Bulletin with the priority dates for the various family and employment-based categories.  The priority dates generally move forward as time passes on.  Sometimes, however, the dates move backward.  This is called retrogression.

Sometimes a beneficiary changes from one category to another.  For example, an F-1 (unmarried son or daughter of a USC) may marry, thus becoming an F-3.  Conversely, an F-3 who divorces becomes an F-1.

On other occasions, a beneficiary’s category changes based upon a change in the petitioner’s status.  For example, an F-2B (the unmarried son or daughter of an LPR) becomes an F-1 (the son or daughter of a USC) when the petitioner parent naturalizes.

When CIS approves the I-130, the beneficiary becomes an “applicant.”  Once the I-130’s priority date is current, applicants still abroad must apply to the DOS for an IV.  Applicants already in the U.S. must apply to CIS for Adjustment of Status (AOS).

Consular processing (CP)

Consular processing (CP) is the process in which an applicant abroad applies for and receives a visa from the U.S. consulate.  When an I-130 priority date becomes current, the State Department’s National Visa Center (“NVC”) notifies the applicant, providing instructions on how to apply for the IV.  The application process involves three steps.

First, the NVC invoices processing fees for the DS-260 Application for Immigrant Visa and the I-864 Affidavit of Support.  Upon payment, the NVC provides the applicant with additional instructions on the forms and supporting documents to be submitted, along with cover sheets (including bar codes) that must accompany the forms.

Next, the applicant must submit the forms and supporting documents to the NVC.  The DS-260 Application for Immigrant Visa is one of the required forms.  The I-864 Affidavit of Support is the other.  INA 213A requires all family-based IV applicants to obtain one or more Affidavits of Support.  These assure the U.S. government that the applicant will not become a public charge.  The Affidavit is essentially a contract between the sponsor and the federal government.  In exchange for the government admitting the sponsored relative as a permanent resident, the sponsor promises to reimburse the government should the sponsored relative receive any means-tested public benefit.  The I-130 petitioner must always be one of the sponsors.  When the I-130 petitioner’s income and assets are insufficient, additional sponsors must also file I-864s.  Each sponsor must live in the U.S. and be a USC or LPR.

Each applicant must also submit various supporting documents.  These vary depending on the relationship between the applicant and sponsoring relative, and typically include documents such as birth certificates, marriage certificates, divorce decrees and police certificates from the local authorities addressing any criminal history.

Once the NVC concludes that it has received the required forms and documents, it transfers the file to the appropriate consulate for final processing.  The consulate schedules an interview and notifies the applicant.  It also provides instructions on where to obtain the required medical examination.

At the interview, the applicant brings the medical examination results and any other requested documents.  If the interview goes well, the consulate affixes an IV to the applicant’s passport.  The IV is normally valid for six months.  This means the alien has six months to enter the U.S. on that visa.  Upon admission, the alien automatically becomes an LPR.

Adjustment of Status (AOS)

Sometimes, an I-130 priority date becomes current when the applicant is already in the U.S. in a non-immigrant status.  Such beneficiaries should seriously consider AOS rather than CP.  AOS occurs when a non-immigrant already lawfully present in the U.S. obtains LPR status without having to leave.  AOS is usually preferable to CP because: (1) the applicant does not have to leave the U.S.; (2) the process is often less time consuming; (3) the applicant can remain near the sponsoring relative; (4) the applicant’s attorney may attend the interview; (5) the applicant retains due process rights, including the right to an appeal if the case is initially denied and (6) the applicant may obtain an EAD and work while the application is pending.

To apply for AOS, the LPR files the form I-485 Application to Adjust Status with CIS, as well as the sponsor’s I-864.

Different supporting documents must accompany the I-485, depending on the particular basis for adjusting.  However, the following documents are generally required: (1) copy of birth certificate; (2) copy of passport biographic page; (3) copy of passport page with non-immigrant visa; (4) two passport-size photos of the applicant; and (5) I-94 Arrival-Departure RecordThe I-693 Medical Examination Form must also be provided to CIS before the interview.

CIS requires an interview for almost all AOS cases.  In family-based cases, both the petitioner and the beneficiary must attend.  Interviews occur at the CIS field offices.

In some marriage-based cases CIS conducts a “Stokes Interview,” in which the couple is separated and questioned individually.  CIS uses this technique to determine whether the couple’s marriage is bona-fide or fraudulent.  If most answers match, the examining officer will likely conclude the marriage is bona-fide.  If many of the answers do not match however, the officer may conclude the marriage is fraudulent.

Following the interview, the officer may: (1) approve the I-130 and I-485; (2) deny the I-130 and I-485; (3) request additional evidence, or (4) require an additional background check.  Sometimes the officer makes a decision immediately after the interview.  Other times, the officer may provide an ambiguous answer, such as “we’ll be sending you a written decision.” Once the officer approves the case, the applicant should receive a Permanent Resident Card (“green card”) within the next several weeks.

Obtaining LPR status in IR cases

U.S. immigration law treats IRs differently from the other family-based preference categories.  There are no priority dates for IRs.  In CP cases, they may apply for IVs as soon as DHS approves the I-130 and transfers the case to the NVC.  In AOS cases, they may file their I-485 applications concurrently with the sponsoring I-130 petition.

In most cases, IRs who entered with inspection but remained in the U.S. beyond their authorized periods of stay may still apply for AOS notwithstanding their overstay.

Conditional Permanent Resident (CPR) status

In many marriage-based IV and AOS cases, the I-130 petitioner and beneficiary spouses have been married for less than two years when CIS approves the I-485.  In these cases, CIS gives the beneficiary spouse and any beneficiary children CPR status rather than full-fledged LPR status.  In such cases, the couple must jointly file an I-751 Petition to Remove the Conditions of Residence,[7] along with supporting documents showing that a bona-fide marriage still exists.  They must file within 90 days of the second anniversary of receiving CPR status.  If they do not, the beneficiary spouse and children lose their CPR status and become subject to removal.  When CIS approves the I-751, it issues the beneficiary spouse and children regular Permanent Resident Cards valid for 10 years.

If the couple separates or the marriage terminates (due to death or divorce) before CIS approves the I-751, the CPR spouse must obtain a waiver of the joint filing requirement in order for CIS to approve the I-751.[8]  CIS grants waivers when: (1) extreme hardship would occur if the alien is removed;[9] (2) the marriage was entered into in good faith, but ended in divorce;[10] or (3) the marriage was entered into in good faith, but the sponsored spouse or child was battered or treated with extreme cruelty.[11]

When CIS processes an I-751, it may call the couple (or in waiver cases the petitioning spouse) back for another interview.  This gives CIS another opportunity to determine whether the marriage was indeed bona-fide.  Interviews commonly occur when the supporting evidence accompanying a jointly-filed I-751 petition is weak, and in many waiver cases.

K-1 Fiancé(e) Visas

USCs may also petition for their fiancé(e)s’ admission so that they may marry.

To begin, the USC fiancé(e) petitioner files the I-129F Petition for Alien Fiancé(e) with CIS, along with the following documents:  (1) proof of petitioner’s U.S. citizenship (birth certificate or U.S. passport); (2) petitioner and beneficiary’s statements describing how they met; (3) proof that the petitioner and beneficiary have met in person within two years of filing the petition[12] (such as: (a) travel itineraries (including stamped passport pages); (b) photos of the couple together and (c) affidavits of witnesses with personal knowledge of the meeting); (4) other proof of the relationship, such as correspondences, e-mails and phone records documenting ongoing communication between the couple and (5) if either fiancé(e) was previously married, copies of the divorce decrees or death certificates verifying the prior marriage’s termination.

If CIS approves the petition, it forwards it to the NVC, which in turn sends it to the consulate in the alien fiancé(e) applicant’s country of residence for further processing.

The consulate schedules the interview once the alien fiancé(e) provides all required forms and documents.  If the interview goes well, the consulate issues a K-1 visa, which is generally valid for four months.  If the applicant has accompanying children, they receive K-2 visas. The couple must marry within 90 days of the alien fiancé(e)’s admission into the U.S.  This is the only way the fiancé(e) may lawfully remain in the U.S.  Once the couple marries, the alien spouse and children may file I-485s.  No I-130 petition is required.

[1] INA 201(b)(2)(A)(i).

[2] INA 203(a)(1).

[3] INA 203(a)(2)(A).

[4] INA 203(a)(2)(B).

[5] INA 203(a)(3).

[6] INA 203(a)(4).

[7] INA 216.

[8] INA 216(c)(4).

[9] INA 216(c)(4)(A).

[10] INA 216(c)(4)(B).

[11] INA 216(c)(4)(C).

[12] 8 CFR 214.2(k)(2).

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