Goulder Immigration Law Firm

Family-Based Green Cards

Green Cards Through Family-Based Immigration

The Immigration and Nationality Act allows U.S. Citizens or Lawful Permanent Residents (green card holders) to sponsor the immigration of foreigners to the United States based upon family relationships (i.e. family-based immigration or "FB"). USCIS will issue a visa after they approve a petition filed by an "immediate relative". After the petition is approved the visa may be issued in as little as 90 days or sometimes after several years depending upon which of the below categories apply and and how long a backlog may be for any applicable family preference category.

However, not all family relationships serve as a basis to apply for Lawful Permanent Resident status.

A U.S. Citizen may file a petition on behalf of his/her:

• Husband, wife, or child under the age of 21 (immediate relative);
• A parent if the U.S. citizen is at least 21 years of age (immediate relative);
• An unmarried child over the age of 21 and their children (first preference);
• Married child of any age and their children (third preference); Brother or sister if the U.S. citizen is at least 21 years old and their spouses and children (fourth preference)
  Husband or wife, and children under the age of 21 (second preference A);

A Lawful Permanent Resident can file the petition on behalf of his/her:

• Husband or wife, and children under the age of 21 (Second Preference A);
• Unmarried child over the age of 21 (Second Preference B).

The Immediate Relative category, as noted above, has no limit on the number of visas issued each year, there is no wait other than the time it takes the USCIS to process the Visa. Under Section 245(i), a U.S. citizen may petition for an immediate relative and that relative may adjust their status (obtain a "green card" or "lawful permanent resident" status) here in the U.S. even if that relative has previously fallen out of status. A eprson who has fallen out of status and who is beneficiary of an immiexdtae relative petition is nopt ineligible, provided that immediate relative (beneificary) must have entered the U.S. legally.

Aliens other than immediate relatives fall into one of the four limited family based preference categories, and a visa will not be immediately available as there is a numerical limit on the number of visas issued per category each year. More aliens want visas than are currently available. Therefore, there may be a long waiting period for the visa to be issued. When the application is received by the USCIS they will note the filing date, this is called the "priority date."  The applicant must wait for the priority date to be current.

The U.S. Department of State publishes a listing of current priority dates in the Visa Bulletin. If the application was filed on or before the date listed in the Visa Bulletin then the priority date is current and the USCIS should contact the applicant. If USCIS does not contact the applicant within several months then an inquiry should be sent to the USCIS. Note, the dates on the Visa Bulletin are unpredictable. The dates may move forward or backwards or they may not move at all. However, a new Visa Bulletin is issued by the State Department on the first day of each month.  An example of the Visa Bulletin and priority dates is provided below.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

To check on the current USCIS priority dates please click here.

OTHER IMPORTANT INFORMATION

Affidavit of Support
All U.S. citizens or legal permanent residents who petition to have their family members admitted to the U.S. as immediate relatives or through the various family-based preferences must act as sponsors and provide an Affidavit of Support for the alien. The affidavit is required to assure the USCIS that the alien will not become a public charge. To qualify as a sponsor the individual must be 18 or older, a U. S. citizen or Lawful Permant Resident of the U.S., and live or hold domicile in the U.S.

This document states that the petitioner can support the alien at 125% of the federal poverty income level. This amount varies according to family size and location. In the event that the primary sponsor does not earn enough income, a co-sponsor may be used. The co-sponsor must meet the above requirements but does not need to be related to the alien. In the event of the death of the sponsor, a substitute Affidavit of Support may be submitted from another close relative only.

The affidavit is an enforceable contract that remains in effect until the alien becomes a citizen or has worked for more that 40 qualifying quarters as defined by the Social Security Act. The sponsor and/or co-sponsor can be required to reimburse any state or federal agency for most public benefits that the alien receives.

Documents for a Visa Application
All applicants must submit certain personal documents such as passports, birth certificates, police certificates and other civil documents, as well as evidence that they will not become public charges in the U.S.

Medical Examinations
Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. A doctor designated by the consular officer will conduct the examination. Costs for such examinations must be borne by the applicant.

Interview
USCIS conducts in person interviews before issuing a Visa. The interviews are detailed question and answer sessions in which the USCIS will attempt to determine whether the marriage is real and/or the required relationship exists. USCIS is suspicious of marriages that occur after removal hearings have been started, marriages where the spouses did not know each other very long, or do not live together. Different religious backgrounds and age differences also raise suspicion.

Miscellaneous
Since no advance assurances can be given that a visa will be issued, applicants are advised not to make any final travel arrangements, not to dispose of their property, and not to give up their jobs until visas have been issued to them. An immigrant visa can be valid for four months from date of issuance.

Removing the Condition on Permanent Residence
A lawful permanent resident is given the privilege of living and working in the United States permanently. Your permanent residence status will be conditional if it is based on a marriage that was less than two years old on the day you were given permanent residence. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or receive adjustment of status. Your permanent resident status is conditional, because you must prove that you did not get married to evade the immigration laws of the UnitedStates.

You and your spouse must apply together to remove the conditions on your residence. You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your alien registration card (commonly know as green card) is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status and be removed from the country.

If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country.

If your child received conditional resident status within 90 days of when you did, then your child may be included in your application to remove the conditions on permanent residence. Your child must file a separate application if your child received conditional resident status more than 90 days after you did.

Who is Eligible?
You may apply to remove your conditions on permanent residence if:

• You are still married to the same U.S. citizen or lawful permanent resident after two years (your children may be included in your application if they got their conditional resident status at the same time that you did or within 90 days).
• You are a child and cannot be included in the application of your parents for a valid reason.
• You are a widow or widower of a marriage that was entered into in good faith.
• You entered into a marriage in good faith, but the marriage was ended through divorce or annulment.
• You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or lawful permanent resident spouse.
• The termination of your conditional resident status would cause extreme hardship to you.
  Please see USCIS Form I-751 (Petition to Remove the Conditions on Residence) for more specific eligibility requirements.

What if I am Late in Applying to Remove the Conditions on Residence?
If you fail to properly file the Form I-751 (Petition to remove the Conditions on Residence)  within the 90-day period before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the Service will order removal proceedings against you. You will receive a notice from the Service telling you that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements (the Service is not responsible for proving that you did not comply with the requirements).

The Form I-751 can be filed after the 90-day period if you can prove in writing to the director of the Regional Service Center that there was good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status.

How Can I Get a Waiver of the Requirement to File a Joint Petition?
If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time.

You may request a waiver of the joint petitioning requirements if:

• Your deportation or removal would result in extreme hardship
• You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition.
• You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you were battered by, or subjected to extreme cruelty committed by your U.S. citizen of legal permanent resident spouse, and you were not at fault in failing to file a joint petition. Please see USCIS Form I-751 (Petition to Remove the Conditions on Residence) for more specific information on waivers.

Will I Get a Work Permit?
As a legal permanent resident, you should have received a permanent resident card. This card will continue to prove that you have a right to live and work in the United States permanently. If you file your USCIS Form I-751 (Petition to Remove the Conditions on Residence) on time, the USCIS will extend your conditional resident status for up to 12 months while your Form I-751 petition is under review.

If you have a question about a Green Card through Family Based Immigration, please call Gerald Goulder toll-free at 866-878- 8473 (866-US VISAS). Another recommended immigration law information websiteemail Attorney Goulder.

Contact a Winston-Salem immigration law firm for an initial consultation.

Goulder Immigration Law Firm
3200 Northline Avenue, Suite 130
Greensboro, NC 27408
Phone: (336) 808-1119

Toll Free 1-866-US-VISAS

The Goulder Immigration Law Firm serves clients throughout central North Carolina (including the cities of Greensboro, Raleigh, Winston-Salem, High Point, Durham, Burlington, Chapel Hill, Cary, Asheboro, Ashville and Salisbury) and the world