FAMILY IMMIGRATION

At Stelmakh & Associates, we help to bring families together. Our attorneys represent individuals and their family members as they immigrate to the United States from all over the world.

We handle all aspects of family immigration, including:

Eligibility

In order to qualify for immigration benefits, alien must be a close relative of an American citizen or a legal permanent resident (LPR, a green card holder).

If qualified, immediate relatives of American citizens have immigrant visas always available for them. Certain other relatives of US citizens and LPRs are classified as four preference groups for which limited amount of visa numbers are allocated each year. Such aliens may immigrate only after the U.S. Department of State Visa Office Bulletin shows that their preference category is “Current” or has availability date later than their “priority date”. The priority date is the date when the petition on behalf of alien relative was filed.

Immediate Relatives

  • spouse of a U.S. citizen.
  • unmarried child of a U.S. citizen who is under the age of 21. This category includes stepchildren, providing the child was under 18 when the marriage creating the relationship occurred, and adopted children, if adopted under the age of 16 and have resided with adopting parent or parents at least for 2 years;
  • parent of a U.S. citizen, if the petitioning citizen has reached the age of 21;
  • widow or widower of a U.S. citizen, if married for at least two years at the time of the U.S. spouse’s death and not then legally separated, provided the alien spouse files the petition within two years of the death while still unmarried; and any child (minor and unmarried) of that spouse.

In the case of a widow or widower, the deceased spouse need only have been a U.S. citizen at the time of death.

Preference Categories

  • Unmarried son or daughter of U.S. citizen (who is 21 or older).
  • a. Spouse or child of LPR
  • b. Unmarried son or daughter of LPR
  • Married son or daughter of a U.S. citizen
  • Brother or sister of a U.S. Citizen if the citizen is at least 21.

Note that the spouse or child accompanying or following to join the principal beneficiary of a family-based petition is classified under the same group as that beneficiary and enjoys the same priority date.

Family-Sponsored Visa Filing

To sponsor a relative alien, U.S. citizen or LPR must file a family petition, Form I-130.

Self-petitioning alien as the widow or widower of a U.S. citizen, or as the spouse or child of an abusive U.S. citizen or LPR must file Form I-360.

If U.S. citizen petitions for foreign orphan, he or she must file Forms I-600 and I-600A.

After successfully obtaining an approved family petition, a relative alien of a U.S. citizen or LPR can file for an immigrant visa and obtain it through adjustment of status or consular processing.

Adjustment of Status

Adjustment of Status (AOS) is a procedure allowing certain aliens already in the United State, including relative aliens, to apply for immigrant status without having to leave the United States. A relative alien adjusts status by filing an Application to Adjust Status, Form I-485.

Consular Immigrant Visa Processing

Consular Immigrant Visa Processing (CP) is a procedure that is available to all relative aliens, no matter where they are located. Through this procedure, the immigrant application is filed at the relative’s “home” consulate or embassy. A relative’s home district is defined as the place where the relative last lived for at least six months before coming to the United States and where the relative has the unrestricted right to return and remain for at least six months.

The Department of States uses its National Visa Center (NVC) to initially process consular immigrant visa applications before sending them overseas. Then NVC forwards the relative’s case to the local consulate for processing and the consulate schedules immigrant visa interview. While a relative alien may be anywhere in the world, including the United States, when the application is first filed, he or she must attend the final interview at the local consulate in person.

Inadmissibility Waivers before USCIS or a Local Consulate

Sometimes alien relatives are not admissible to the United States and are not able to obtain permanent residency due to certain criminal convictions, prior overstays in the U.S. or misrepresentation. In this case, inadmissibility waivers are often the only way to proceed. Having an experienced attorney prepare these waivers is very important.

Marriage Based Immigration

The validity of marriage is determined by the law of the place where the marriage is celebrated.

However, these marriages are not recognized:

  • the marriage entered for the sole purpose of immigration benefits
  • “Proxy marriages” (were the parties are not physically present in the presence of each other)
  • Marriages that are in conflict with public policy of the intended place of residence
  • Marriages where spouses do not intend to live together at the time of concluding marriage
  • Homosexual marriages

If the marriage is celebrated less than two years before the grant of immigrant status, alien spouse obtains “conditional” resident status. Conditional LPR status expires in two years unless certain conditions are met.

Removal of Condition

In order to remove the condition, spouses must jointly file form I-751 90 days prior to expiration date of the LPR status (2 years after the status was granted). The USCIS will consider both the validity and the good faith of the marriage when reviewing the I-751 and at the time of the interview.

There is a waiver procedure available for the parties that are divorced or if the petitioning spouse refuses to file I-751 or attend the interview.

Waivers of Joint Filings

A waiver may be granted in the following four situations.

  • Extreme Hardship: Alien must show that extreme hardship would occur if the alien spouse were removed.
  • Good Faith: Alien must show that the alien spouse entered into the marriage in good faith. Evidence of good faith includes documentation demonstrating common assets of the parties, any children born to the marriage, and the length of time the parties lived together before breaking up.
    Also alien must show that the marriage has been terminated through divorce, annulment, or death. Finally, the alien must show that he or she was not at fault in failing to file a timely petition.
  • Battered Spouse or Child: Alien must show that the alien spouse entered into the marriage in good faith; and that the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by the other spouse or parent. The alien spouse must also show that he or she was not at fault in failing to file the joint I-751 in a timely manner.
  • Death of the petitioning spouse