The
Law Offices of Bashir
Ghazialam handles
all aspects of family immigration. Whether
it is marriage to a United States
citizen or fiancée, or any of the other family
based immigration situations described to
the left, we are well equipped and prepared
to handle your family matters.
Preference Categories
Not
all family relationships serve as a basis
to apply for Legal Permanent Resident (LPR)
status. Under the Immigration and Naturalization
Act (INA), family relationships are divided
into specific categories, which determine
when a visa will be available to the beneficiary
family member. [ Department
of State Current Visa Bulletin ]
Immediate Relatives
Beneficiaries
that are in this category have an "immediate"
visa available to him/her. Immediate relatives
include the following:
(1) Spouses of U.S citizens; (2) Minor unmarried
children (under 2) of U.S.
citizens; (3)
Parents
of U.S citizens, provided the citizen petitioner
is at least 21 years of age; and (4) Spouses
of deceased U.S.
citizens with certain restrictions.
Preference Immigrants
The
following beneficiaries may have a significant
waiting time before a visa becomes available
to them. Preference categories are as follows:
·
First
Preference - Unmarried sons or daughters of
U.S. citizens (i.e., those who are
21 years of age or older);
·
Second
Preference - Spouses or children of aliens
lawfully admitted for permanent residence
or, Unmarried sons or daughters or aliens
lawfully admitted for permanent residence;
·
Third
Preference - Married sons or daughters of
citizens of the U.S.; and
·
Fourth
Preference - Brothers or sisters of citizens
of the U.S. if such citizens are at least
21 years of age.
Derivative Beneficiaries
The
spouse or child of the principle alien under
the family-sponsored preferences is entitled
to the same status and order of consideration,
if accompanying or following to join the spouse
or parent.
Consular Processing
A
green card is the common term for an immigrant
or permanent visa and is proof of permanent
resident status in the United States. There are two ways
to apply for an immigrant visa - by applying
for adjustment of status in the United States or by consular processing at a U.S. consulate
abroad.
Once
United States Citizenship and Immigration
Services (USCIS) approves
your family-based (Form I-130, Petition for
Alien Relative) or employment-based (Form
I-140, Petition for Alien Worker) petition,
it sends your petition to the National Visa
Center (NVC), which is part of the Department
of State. The NVC keeps your petition until
your priority date is about to become current.
Each
month, the Department of State releases the
Visa Bulletin, which lists current priority
dates. If you have a family-based petition,
your priority date is the date USCIS received
the Form I-130 filed on your behalf. If you
have an employment-based petition, your priority
date is the date a labor certification application
was filed on your behalf. If labor certification
was not required in your case, your priority
date is the date USCIS received the Form I-140
filed on your behalf.
Unless
you have already filed your application for
adjustment of status, when your priority date
is current, the NVC will send you a letter
asking whether you would like to apply for
your immigrant visa by filing for adjustment
of status in the United
States or by filing an
immigrant visa application with a U.S. consulate abroad.
Persons
outside the United
States who
are applying for an immigrant visa must go
through consular processing. Only persons
inside the United
States are
eligible to apply for adjustment of status.
However, persons inside the United States may choose to travel
abroad and obtain their immigrant visa by
consular processing.
Applying for Consular Processing
When
your priority date is almost current, the
NVC will send you:
•
A fee bill for Form I-864, Affidavit of Support;
and
•
Form DS-3032, Agent of Choice and Address.
Form
DS-3032 allows you to choose an "agent"
to receive papers related to your case from
the NVC. The agent may not sign documents
for you. The agent may only assist you with
your paperwork and with the payment of required
fees. The agent can be the person who is sponsoring
you, an attorney, a friend, or an organization
that is helping you.
You
do not have to pick an agent. If you would
like to receive information from the NVC directly,
you can pick that option on the Form DS-3032.
If you do not send Form DS-3032 back to the
NVC within one year, your case may be terminated.
Once
the Form I-864, Affidavit of Support, processing
fee is paid, the NVC will send the petitioner
(your sponsor) Form I-864, along with instructions.
You must take the completed Form I-864 to
your interview at the consulate. It should
not be sent to the NVC or the consulate.
Once
the NVC receives your Form DS-3032, it will
send you or your agent the Immigrant Visa
(IV) fee bill.
Once
the IV fee bill is paid, the NVC will send
you or your agent the Instructions Package
for Immigrant Visa Applicants. Although the
exact contents of the instructions package
depend on which consulate you go to for your
visa interview, the package will include Form
DS-230, Applicant for Immigrant Visa and Alien
Registration. You should read the instructions
package carefully and make sure you send the
right documents to the right place.
Once
all the required documents are received and
your priority date is current, you will receive
an Appointment Package for Immigrant Visa
Applicants. This will tell you the date and
time for your visa interview at the consulate
and give you information about the required
medical exam. You and any family members accompanying
you to the United
States must
take a medical exam. You must bring the results
of all of the medical exams to your visa interview.
The
last step is the visa interview at the consulate.
Make sure you bring original or certified
copies of all required documents. The consular
officer will ask you questions about a wide
range of topics, which may include your family,
your employment, your health, your immigration
history, and any criminal history you may
have.
You
will be required to sign DS-230, Part II in
front of the consular officer. Your signature
is your promise that the documents you have
submitted in support of your application are
authentic and the statements you have made
on your application are true.
If
you receive an immigrant visa, you must travel
to the United States within six months of
the date the visa was issued to you.
Self Petitioning
Generally,
U.S.
citizens (USC) and Lawful Permanent Residents
(LPRs) file an immigrant
visa petition with U.S. Citizenship and Immigration
Services (USCIS) on behalf of a spouse or
child, so that these family members may enter
or remain in the United States
as a LPR. The first step in the process is
to file Form I-130, Petition for Alien Relative.
Form I-130 is filed by the USC/LPR, the petitioner,
on behalf of the family member who is the
beneficiary. The petitioner controls when
or if the petition is filed. Unfortunately,
some U.S. citizens and LPRs misuse their control of this process to abuse their family
members, or by threatening to report them
to USCIS. As a result, most battered immigrants
are afraid to report the abuse to the police
or other authorities.
Under
the Violence Against
Women Act (VAWA) passed by Congress in 1994,
the spouses and children of United States citizens or lawful permanent
residents (LPR) may self-petition to obtain
lawful permanent residency. The immigration
provisions of VAWA allow certain battered
immigrants to file for immigration relief
without the abuser's assistance or knowledge,
in order to seek safety and independence from
the abuser. Victims of domestic violence should
know that help is available to them through
the National Domestic Violence Hotline on
1-800-799-7233 or 1-800-787-3224 [TDD] for
information about shelters, mental health
care, legal advice and other types of assistance,
including information about self-petitioning
for immigration status.
Who is Eligible?
To
be eligible to file a self-petition (an application
that you file for yourself for immigration
benefits) you must qualify under
one of the following categories:
• Spouse: You may self-petition if you are a battered spouse
married to a U.S.
citizen or lawful permanent resident. Unmarried
children under the age of 21, who have not
filed their own self-petition, may be included
on your petition as derivative beneficiaries.
• Parent: You may self-petition if you are the parent of
a child who has been abused by your U.S. citizen or lawful permanent resident
spouse. Your children (under 21 years of age
and unmarried), including those who may not
have been abused, may be included on your
petition as derivative beneficiaries, if they
have not filed their own self-petition.
• Child: You may self-petition if you are a battered child
(under 21 years of age and unmarried) who
has been abused by your U.S. citizen or
lawful permanent resident parent. Your children
(under 21 years of age and unmarried), including
those who may not have been abused, may be
included on your petition as derivative beneficiaries.
FIANCÉ VISA
If
your fiancé is not a citizen of the United
States and you plan to
get married in the United States, then you must file
a petition with USCIS on behalf of your fiancée.
After the petition is approved, your fiancée
must obtain a visa issued at a U.S. Embassy
or consulate abroad. The marriage must take
place within 90 days of your fiancée entering
the United States.
If the marriage does not take place within
90 days or your fiancée marries someone other
than you (the U.S.
citizen filing USCIS Form I-129F - Petition
for Alien Fiancée, your fiancée) will be required
to leave the United
States. Until
the marriage takes place, your fiancée is
considered a nonimmigrant. A nonimmigrant
is an individual seeking to temporarily enter
the United
States for
a specific purpose. A fiancée may not obtain
an extension of the 90-day original nonimmigrant
admission.
If
your fiancée intends to live and work permanently
in the United States, your fiancée should
apply to become a permanent resident after
your marriage. (If your fiancé does not intend
to become a permanent resident after your
marriage, your fiancé/new spouse must leave
the country within the 90-day original nonimmigrant
admission.) Please note,
your fiancé will initially receive conditional
permanent residence status for two years.
Conditional permanent residency is granted
when the marriage creating the relationship
is less than two years old at the time of
adjustment to permanent residence status.
Please
note: Your fiancé may enter the United
States only
one time with a fiancé visa. If your fiancé
leaves the country before you are married,
your fiancé may not be allowed back into the
United
States without
a new visa.
Who is Eligible?
U.S. citizens who will be getting married to a foreign
national in the United
States may
petition for a fiancé classification (K-1)
for their fiancé. You and your fiancé must
be free to marry. This means that both
of you are unmarried, or that any previous
marriages have ended through divorce, annulment
or death. You must also have met with your
fiancé in person within the last two years
before filing for the fiancé visa. This requirement
can be waived only if meeting your fiancé
in person would violate long-established customs,
or if meeting your fiancé would create extreme
hardship for you. You and your fiancé must
marry within 90 days of your fiancé entering
the United States.
You
may also apply to bring your fiancé's unmarried
children, who are under age 21, to the United
States.
Asylum
Generally
all persons - regardless of their immigration
status - are allowed to apply for asylum.
If you are already in removal proceedings,
you must submit your asylum application to
the immigration judge assigned to your case.
This is called a defensive asylum application
because your asylum claim is serving as a
defense from removal from the United
States. If
you are not already in removal proceedings
and you want to apply from asylum, you must
mail your asylum application to the U.S. Citizenship
and Immigration Services (USCIS) Service Center that has jurisdiction over your
place of residence. This is called an affirmative
asylum application.
A
person who wins asylum is referred to as an
asylee, and there
are many benefits that come with being an
asylee. For example,
if you are an asylee,
you may bring your spouse and children under
the age of 21 to the United States. Also after one year,
an asylee may apply
for permanent residency, and you may eventually
apply to become a U.S citizen.
Affirmative Asylum Application
If
you are not in removal proceedings and you
have not been previously denied asylum or
issed a removal order, you may file an affirmative application
for asylum. To file affirmatively, you must
mail your asylum application to the government.
If your asylum application was submitted properly,
you will receive a notice confirming that
your application has been accepted for processing.
The
next notice you will receive will be for a
fingerprints appointment for you and any spouse
or child of yours that is in the United States and was included on
your application. The next notice you will
receive after the fingerprints notice will
be the notice giving you the date, time, and
place of your asylum interview.
Usually
you will receive the asylum officer's decision
within three weeks of your interview date.
If the asylum officer granted you asylum,
you will be sent an I-94, Arrival/Departure
Card showing that you have won asylum in the
United States.
The I-94 card is proof of your valid asylee
immigration status and can be used to apply
for a social security and an employment authorization
document.
In
most cases, if the asylum officer did not
grant you asylum, your asylum application
will be referred to an immigration judge.
You can "renew" your asylum application
in front of the immigration judge. This means
the immigration judge will look at your application
again to see whether you meet the requirements
for asylum, and you will be given an opportunity
to tell the immigration judge what happened
to you in your home country and why you are
afraid to go back.
After
reviewing your asylum application and listening
to your testimony and the testimony of any
witnesses and/or experts on your behalf, the
immigration judge will either grant or deny
your asylum application. If you are granted
asylum, you will be issued an I-94, Arrival/Departure
card showing that you have won asylum in the
United
States. The
I-94 card is proof of your valid asylee immigration status and can be used to apply for a social
security and an employment authorization document.
If you are denied asylum, you may want to
appeal the immigration judge's decision to
the Board of Immigration Appeals (BIA). However,
appeals to the BIA are very difficult to win,
and you should try your best to win your asylum
case either before the asylum officer or the
immigration judge.
Like
defensive asylum applications, affirmative
applications for asylum must be filed within
one year of the date of your arrival in the
United States.
If you apply for asylum more than one year
after the date of your arrival, you must show
that "extraordinary circumstances"
prevented you from filing your asylum application
on time. It is very difficult to meet the
"extraordinary circumstances" test.
Proving You Are a Refugee
If
you are applying for asylum, you must prove
that you are a refugee. This means that you
have to show that you are unwilling or unable
to return to your home country because of
past persecution or a "well-founded"
fear of future persecution because of your
race, religion, nationality, membership in
a particular social group, or political opinion.
You
may be ineligible for asylum if the government
can show that you lived safely in, and were
accepted as a permanent resident of, another
country after fleeing your home country and
before coming to the United States.
Burden of Proof for Asylum
To
be granted asylum, you must prove that there
is a "reasonable probability" that
you will be persecuted if forced to return
to your home country.
You
must also show that you have both an "objective"
and "subjective" well-founded fear
of future persecution.
To
prove that you have an objective fear of persecution,
you must show that a reasonable person in
your circumstances would fear persecution.
Sometimes this can be shown by providing evidence
of country conditions - government and news
reports about the situation in your country.
To
prove that you have a subjective fear of persecution,
you must show that your fear is genuine.
Asylum
is always discretionary. This means that the
immigration judge must decide that you deserve
asylum after finding that you meet the eligibility
requirements.
Asylee/Refugee Status
If
you have been admitted to the United
States as a refugee or
if you were granted asylee
status in the United
States within
the previous two years, you may request follow-to-join
benefits for your spouse and/or unmarried
children under 21
years of age. This is also referred to as
"derivative status" because your
spouse and children will derive their asylum
status from you.
To
apply for derivative status for your spouse
and children, you will need to file Form I-730,
Refugee/Asylee Petition.
You will need to complete a separate application
for your spouse and a separate application
for each of your children. Generally, you
must file Form I-730, Refugee/Asylee Petition, within two years of the date you received
asylee or refugee status (this deadline may be extended for
humanitarian reasons).
Once
you have asylee
or refugee status, you can work in the United States.
However, you need to file Form I-765, Application
for an Employment Authorization Document,
and receive an Employment Authorization Document
before you may begin work.
Asylees
and refugees are also allowed to travel outside
the United States. However, they must
have a valid Refugee Travel Document to reenter
the United States. You can apply for a
refugee travel document by filing Form I-131,
Application for Travel Document.
Adjustment of Status
The
adjustment of status is a procedure allowing
certain non-U.S. citizens already in the United
States to
apply for immigrant status. Persons admitted
to the United States
in a nonimmigrant, refugee, or parolee category
may have their status changed to that of lawful
permanent resident if they are eligible to
receive an immigrant visa and one is immediately
available.
In
such cases, the alien is counted as an immigrant
as of the date of adjustment, even though
the alien may have been in the United States for an extended period
of time. Beginning in October 1994, section
245(i) of the Immigration
and Nationality Act (INA) allowed illegal
residents who were eligible for immigrant
status to remain in the United States and adjust to permanent
resident status by applying at a USCIS office
and paying an additional penalty fee. Section
245(i) is no longer
available unless the alien is the beneficiary
of a petition under section 204 of the Act
or of an application for a labor certification
under section 212(a)(5)(A), filed on or before April 30, 2001. Also, if filed
after January 1, 1998, the alien must have
been present in the United States
on December 21, 2000. Prior to October 1994,
most illegal residents were required to leave
the United
States and
acquire a visa abroad from the Department
of State, which is the current law now.
Background
An
immigrant is a foreign national who has been
granted the privilege of living and working
permanently in the United
States. You
must go through a multi-step process to become
an immigrant. In most cases, USCIS must first
approve an immigrant petition for you, usually
filed by an employer or relative. Then, an
immigrant visa number must be available to
you, even if you are already in the United States.
After that, if you are already in the United States, you may apply to adjust
to permanent resident status. (If you are
outside the United States, you will be notified to go to the
local U.S.
consulate to complete the processing for an
immigrant visa.)
You
may be eligible to apply for adjustment to
permanent resident status if you are already
in the United
States and
if one or more of the following categories
apply to you.
Family Member
•
You are the spouse, parent, unmarried child
under age 21, the unmarried son or daughter
over age 21, the married son or daughter,
or the brother or sister of a United States
citizen and have a visa petition approved
in your behalf.
•
You are the spouse or unmarried son or daughter
of any age of a lawful permanent resident
and you have a family-based visa petition
approved in your behalf.
Employment
•
You are an alien who has an approved visa
petition filed in your behalf by a United States
employer.
Visa Number
•
If you are a Family- or Employment-based applicant,
you must have an immigrant visa number available
from the State Department unless you are in
a category that is exempt from numerical limitations.
Immediate relatives of United States
citizens are exempt from this requirement.
Immediate relatives of U.S. citizens
are parents, spouses, and unmarried children
under 21. (For instance, you can apply to
adjust to permanent resident status at the
same time that your U.S. citizen daughter
files an application for you to become an
immigrant.)
Other
immigrant categories that are exempt from
numerical limitations and do not need a visa
number include special immigrant juvenile
and special immigrant military petitions.
•
For the unmarried son or daughter (over 21
years of age) of a US Citizen, brother or sister of a US Citizen, or
the spouse or children of lawful permanent
residents, visa numbers are limited by law
every year. This means that even if the USCIS
approves an immigrant visa petition for you,
you may not get an immigrant visa number immediately.
In some cases, several years could pass between
the time the USCIS approves your immigrant
visa petition and the State Department gives
you an immigrant visa number.
Fiancée
•
You were a fiancée who was admitted to the
United States
on a K-1 visa and then married the U.S. citizen who applied for the K-1
visa for you. Your unmarried, minor children
are also eligible for adjustment of status.
If you did not marry the U.S.
citizen who filed the K-1 petition in your
behalf, or if you married another U.S. citizen or lawful permanent resident, you
are not eligible to adjust status in the United States.
Asylee
You
are an asylee or
refugee who has been in the United States
for at least a year after being given asylum
or refugee status and still qualify for asylum
or refugee status.
Diversity Visa
You
received notice from the Department of State
that you have won a visa in the Diversity
Visa Lottery.
Cuban Citizen
You
are a Cuban citizen or native who has been
in the U.S.
for at least a year after being inspected,
admitted, or paroled into the United States.
Your spouse and children who are residing
with you in the United States
may also be eligible for adjustment of status.
U.S. Resident Since Before
01/01/72
You
have been a continuous resident of the United States since before January
1, 1972.
Parent’s LPR Status
Your
parent became a lawful permanent resident
after you were born. You may be eligible to
receive following-to-join benefits if you
are the unmarried child under age 21 of the
lawful permanent resident. In these cases,
you may apply to adjust to permanent resident
status at the same time that your parent applies
for following-to-join benefits for you.
Spouse’s LPR Status
Your
spouse became a lawful permanent resident
after you were married. You may be eligible
to receive following-to-join benefits. In
these cases, you may apply to adjust to permanent
resident status at the same time that your
spouse applies for following-to-join benefits
for you.
Otherwise Eligible Immediate Relatives
If
"otherwise eligible" to immigrate
to the U.S., immediate relatives may adjust
status to LPR (get a "green card")
in the United States even if they may have
done any of the following:
(1)
Worked without permission, (2) remained in
the U.S. past the period of lawful admission
(e.g., past the expiration date on your I-94)
and filed for adjustment of status while in
an unlawful status because of that, (3) failed
otherwise to maintain lawful status and with
the proper immigration documentation, or (4)
have been admitted as a visitor without a
visa under sections 212(l) or 217 of the Act
(which are the 15-day admission under the
Guam visa waiver program and the 90-day admission
under the Visa Waiver Program, respectively).
Please
note: If a person came into the U.S.
illegally, that person is barred from adjusting
their status to LPR (cannot obtain a green
card) even if he or she marries a U.S. citizen or otherwise becomes
an immediate relative. An immediate relative
must meet the eligibility requirement of being
“inspected and admitted ... into the United States.”
There may be other reasons that make you eligible
for adjustment to permanent resident status.
Green Card Delays Relating to FBI
Name Check
All
persons who apply for citizenship or LPR status
are subjected to a fingerprint check as well
as an FBI name check procedure. The fingerprint
part of that process is normally resolved
within 48 to 72 hours. The name check process,
by contrast, can take anywhere from a few
weeks to a few years to resolve.
In
order to reduce the administrative burdens
caused by the sharp increase in litigation
caused by the old policy, USCIS has changed
its policy for adjustment of status applications
through a Memo from Associate Director Michael
Yates on February 4, 2008. Where an adjustment
of status application is otherwise approvable
and the FBI name check request has been pending
form more than 180 days, the adjustment application
shall be approved. If adverse information
is obtained after the case is approved, USCIS
may move to rescind the adjustment approval
and initiate removal proceedings.
Please
note that the previous policy remains unchanged
for naturalization cases. Thus, no naturalization
case will be approved prior to the successful
completion of the FBI name check process.
In
the most recent meeting of the AILA/CIS committee,
District Director Paul Pierre confirmed that
his office and staff are fully aware of the
new Interoffice Memorandum from Associate
Director Michael Yates. As members may know,
San Diego continues to have one of the fastest AOS adjudication
timetables in the U.S.
The San Diego District will move to pull and
adjudicate all cases affected by the new policy
as soon as possible.
In
order to identify and address those cases
which have been pending the longest, the local
office will pull all cases pending more than
180 days past the interview date. They understand
that 180 days past interview is probably a
few months past the date that the name check
was originally started but they have to start
somewhere. If new fingerprints are needed,
the applicant will be rescheduled for prints.
After the prints are taken, the case can be
adjudicated even if the name check is still
pending. If new fingerprints are not needed,
the case will be immediately adjudicated.
While
the local office refused to formally confirm
the number of local AOS cases currently delayed
under the name check procedure, informally
it is understood that there may be approximately
1200 cases. Unfortunately, these will not
all be completed before inquiry day on Tuesday.
Members are encouraged to wait at least 6
months past the case interview date before
submitting an e-mail case inquiry. Please
note that the e-mail inquiry autotext
reply to name check subject cases has not
yet been updated. Until that happens, members
may receive text stating the old policy even
though that policy is no longer in effect
for AOS cases.
If
more than 120 days have passed since your
Green Card application is pending FBI name
check, and USCIS has failed to make a decision
on your application or if you believe USCIS
is unreasonably delaying the issuance of your
green card, please contact The Law Offices
of Bashir Ghazialam
to speak about your case.
