Embarking on the journey of petitioning for family members to immigrate to the United States can be filled with numerous questions. The core of this process is Form I-130, Petition for Alien Relative. U.S. citizens or lawful permanent residents use this form to establish a qualifying relationship with a relative who wishes to immigrate to the United States. Submitting this form is the initial step towards aiding your relative in obtaining a green card, though it does not confer any immediate immigration status or benefit.
To help you navigate this process, this article answers the most frequently asked questions about petitioning for family immigrants. This guide aims to clarify the procedures and requirements involved in bringing your loved ones closer to you. For further inquiries or legal assistance, please contact us, the California Immigration Attorney, today. Our team is committed to providing guidance and support throughout your family immigration petition journey.
Questions About Basic Eligibility and Application Procedures
As a U.S. Citizen, Can I Petition for My Daughter and Granddaughter?
As a U.S. citizen, you can petition your daughter to become a permanent resident in the United States. The eligibility requirements for petitioning are distinct based on the relationship with the beneficiary.
In your daughter's case, if she is unmarried and under the age of 21, she falls under the category of "children." If she is over 21 or married, she is categorized as an "unmarried son or daughter" or "married son or daughter," respectively. The petition can include your daughter’s children or grandchildren in these cases.
Moreover, when a U.S. citizen files Form I-130 for their child, the child is eligible to apply for a nonimmigrant K-4 visa. This visa permits the child to live, work, or attend school in the United States while the visa petition is pending. Obtaining a K-4 visa is optional and not a requirement for the child to eventually receive an immigrant visa. This option is often considered to enable the child to come to the United States more quickly.
However, the situation becomes more complex when considering the petition for a grandchild. According to U.S. immigration laws, a U.S. citizen cannot directly sponsor a grandchild to enter the country. The definition of immediate relatives for immigration purposes includes spouses, parents, and unmarried minor children of U.S. citizens but does not extend to grandchildren.
The pathway for your granddaughter to enter the U.S. is indirectly linked to the petition you filed for your daughter. When your daughter is eligible to apply for a visa, her children (your grandchildren) can also file along with her. Thus, by sponsoring your daughter, you indirectly facilitate the process for your granddaughter.
Who Counts as a Child When Getting an Immigrant Visa or Green Card?
The definition of a "child" in U.S. immigration law influences the type of visa application process and the accompanying requirements.
The most fundamental criteria defining a child for immigration are age and marital status. A "child" is defined as an unmarried person under 21. This distinction is critical, as those who apply for lawful permanent resident status as children but turn 21 before approval can no longer be considered children. This is commonly referred to as “aging out.”
However, the Child Status Protection Act (CSPA) helps protect certain children from aging out by providing a method for calculating a person's age to see if they meet the definition of a child for immigration purposes. Types of child relationships under U.S. immigration law can be:
- A genetic child that is born in wedlock.
- A genetic child born out of wedlock. In this case, no legitimation is required if the mother is petitioning. If the father is petitioning, legitimation is required under the laws of the father or child’s place of residence, or a bona fide parent-child relationship must be shown.
- A child who is born through assisted reproductive technology (ART) to a gestational mother who is legally recognized as the parent.
- A step-child provided the marriage, creating the step-relationship that occurred before the child turned 18.
- An adopted child has specific conditions regarding the adoption age and the duration of legal custody and residence with the adoptive parent.
- Adopted Children. For adopted children, the child should have been adopted before age 16, and the adoptive parent should have had two years of legal custody and residence with the child. There is an exception for families who have adopted a sibling; the second sibling can be adopted before age 18.
Can More Than One U.S. Family Member Petition for the Same Immigrant?
The U.S. immigration system allows multiple family members to file petitions for the same immigrant. This means that if an immigrant has more than one close relative who is a U.S. citizen or permanent resident, each of these relatives can independently file a visa petition for that immigrant.
For example, if a sibling and the child of an immigrant are U.S. citizens, they can each file a petition. These petitions do not cancel each other out and can coexist without legal complications. The rationale behind this provision is to provide multiple pathways for the immigrant, considering various circumstances that may arise.
Some factors could render multiple petitions valid, including:
- Circumstances such as the death of a petitioner or divorce in marriage-based green card cases can render a single petition invalid. In such cases, having an additional petition can provide a backup option, ensuring the continuity of the immigration process for the beneficiary.
- Different petitions can vary in processing time based on the familial relationship. For example, petitions filed by U.S. citizens for their parents or spouses often move faster than those filed by siblings. Having multiple petitions can potentially speed up the process of obtaining permanent residency.
- Visas for immediate relatives of U.S. citizens, which include spouses, unmarried children under 21, and parents (if the U.S. citizen is 21 or over), are always available. However, the visas are subject to annual numerical limits and preference categories for other family members not considered immediate relatives. These categories are determined based on the relationship to the U.S. citizen or permanent resident, and visas become available based on the priority date, the date the Form I-130 was filed. Having multiple petitions can be advantageous in navigating these preference categories.
- Multiple petitions act as a safety net in cases where an individual's circumstances change over time, such as in cases where the priority date for a visa might be significantly delayed. In scenarios with long waiting periods, having more than one petitioner can offer alternative pathways and security in the immigration process.
Questions About Unusual Situations in Petitioning for Family
What If I Die Before the Immigrant I'm Sponsoring Receives a Green Card?
If a U.S. petitioner or sponsor dies before the immigrant they are sponsoring receives a green card, this can significantly impact the immigration process. If the petitioner dies after the approval of Form I-130 (Petition for Alien Relative) but before the beneficiary completes the immigration process, the principal beneficiary may request humanitarian reinstatement.
This discretionary relief allows the beneficiary to proceed with the application process. Derivative beneficiaries cannot request humanitarian reinstatement; however, they may benefit if the principal beneficiary’s request is approved.
For humanitarian reinstatement to be granted, a new Affidavit of Support (Form I-864) is required from a substitute sponsor who must be related to the immigrant in specific ways, such as a spouse, parent, sibling, child, or legal guardian.
If the dead petitioner was the immigrant's spouse, the widow(er) could file for immigrant benefits based on their marriage. The non-resident can apply for a green card within two years of the petitioner’s death if the marriage was in good faith.
If Form I-130 was approved before the spouse's death, USCIS converts it to an approved I-360 self-petition. The surviving spouse must self-petition using Form I-360 if the I-130 was not filled out before the death. If the I-130 petition is approved and the marriage occurs within 90 days of admission but the petitioner dies after that, the immigrant may apply for permanent residency without needing to file an I-360, regardless of the U.S. citizen petitioner’s death.
The possibilities for continuing the immigration process depend on various factors, including how far along the case was when the U.S. sponsor died, the relationship between the beneficiary and the petitioner, whether the beneficiary was residing in the U.S. when the I-130 was approved, and the beneficiary’s ability to obtain an appropriate financial sponsor.
What If I Change My Mind About Petitioning for My Family Member to Immigrate?
When a U.S. citizen or green card holder withdraws their petition for a family member's immigration, the process and implications vary depending on the application stage and the reasons for withdrawal.
Withdrawing the I-130 petition before approval involves writing a letter to USCIS. This letter should include the petitioner's and the foreign national's names and dates of birth, along with the petition's identifying number on the receipt notice (Form I-797). Once the letter is sent, USCIS will confirm the withdrawal. If no confirmation is received, consulting an immigration attorney is advisable to ensure the withdrawal is processed.
If the I-130 is approved when Form I-485 has not been reviewed or the immigrant is not en route to the U.S., the petitioner can still withdraw their petition using the same steps as before approval. However, withdrawal is impossible if the immigrant is en route to the U.S. or Form I-485 has already been reviewed.
Withdrawing an I-130 petition can lead to penalties, including jail time and fines, especially if the petition contains fraudulent information. Future petitions may also be impacted, with USCIS likely scrutinizing the petitioner's motives and the authenticity of their relationships.
Withdrawing an I-485 petition may invalidate the petitioner's Employment Authorization Document (EAD), affecting their work eligibility in the U.S. and possibly complicating future entries into the country.
If a spouse withdraws their I-130 petition, the application will be denied without the possibility of reinstatement, except in cases of abuse, where an I-360 petition might be applicable. Green card holders who no longer reside in the U.S. or have changed their permanent residence status can voluntarily revoke their Legal Permanent Resident (LPR) status using Form I-407. This action is irreversible and requires careful consideration.
Questions Concerning Spouses and Partners
What Should I Do If I Believe I'm a Victim of Immigration Marriage Fraud?
In cases where you believe you are a victim of immigration marriage fraud, there are specific legal actions and considerations to be aware of. Firstly, marriage fraud, or sham marriage, is when a union is entered solely for immigration benefits without the intention of establishing a bona fide marital relationship.
This can involve a U.S. citizen being paid to marry a noncitizen or a foreign national deceiving a U.S. citizen into believing the marriage is legitimate. Identified by USCIS, these include paid marriages, marriages as a favor, fraudulent marriages where one party believes it is legitimate, mail-order marriages, and visa lottery fraudulent marriages.
If found guilty of marriage fraud, noncitizens could face penalties such as denial of status change applications, deportation, and denial of future immigrant visa petitions. Criminal charges can include visa fraud, harboring a noncitizen, or making false statements, each carrying additional fines and prison sentences.
U.S. citizen spouses can also face criminal charges for participating in a fraudulent marriage. Noncitizens unlawfully in the U.S. may face reentry bans between three and ten years, depending on their illegal stay.
Section 204(c) of the INA bars visa petition approval where the beneficiary has previously participated in or conspired to enter a fraudulent marriage. It requires “substantial and probative evidence” of previous fraudulent activities for application.
Can I Sponsor My Same-Sex Partner for a U.S. Green Card?
The ability to sponsor a same-sex partner for a U.S. Green Card is affirmed and supported by U.S. immigration law. The U.S. Supreme Court's decisions in United States v. Windsor and Obergefell v. Hodges have effectively legalized gay marriage across all states and directed that same-sex marriages be treated equally under U.S. immigration law.
U.S. Citizenship and Immigration Services (USCIS) views same-sex marriages the same as opposite-sex marriages in deciding on family green card applications. This means same-sex spouses of U.S. citizens and lawful permanent residents are eligible to apply for marriage green cards.
When filing for an immigrant visa, a U.S. citizen or lawful permanent resident in a same-sex marriage can file a Form I-130, Petition for Alien Relative, for their foreign spouse. The same-sex nature of the marriage does not negatively impact the petition's eligibility or admissibility.
With Fiancé(e) Petitions, a U.S. citizen engaged to a foreigner of the same sex can file a Form I-129F, Petition for Alien Fiancé(e), which allows their fiancé to enter the United States for marriage.
If the spouse resides outside the United States, they will apply via consular processing. If they already live in the U.S., they can apply for an adjustment of status. The process can be concurrent or non-concurrent based on the petitioner’s status as a U.S. citizen or green card holder.
Same-sex couples must demonstrate a genuine relationship and shared life plan. This can involve overcoming challenges such as cohabitation and sharing financial assets, which may be complicated by societal discrimination and fears.
The marriage must be legally valid in the place where it occurred. For same-sex couples, this means marrying in a jurisdiction that recognizes same-sex marriage. Civil unions, while offering many marital benefits, do not confer immigration benefits.
Which Crimes Bar You from Filing an I-130 Petition for an Immigrant Spouse?
Under the Adam-Walsh Child Protection and Safety Act of 2006, certain criminal convictions can disqualify U.S. citizens and lawful permanent residents (LPRs) from petitioning family members, including an immigrant spouse, for U.S. residence (green cards).
The Act amends provisions of the Immigration and Nationality Act (INA) to prohibit U.S. citizens and LPRs convicted of specified offenses against minors from having their family-based immigrant visa petitions approved. This prohibition extends to family-based petitions and K nonimmigrant petitions (fiancé and derivatives).
A "specified offense against a minor" includes a range of crimes, such as:
- Kidnapping (unless committed by a parent or guardian).
- Video voyeurism.
- False imprisonment.
- Solicitation to engage in sexual conduct.
- Solicitation to practice prostitution.
- Possession or distribution of child pornography.
- Use in sexual performance.
- Criminal sexual conduct involving a minor.
There's a limited exception where the Secretary of Homeland Security may determine that the petitioner poses no risk to the beneficiary. To qualify, the petitioner must establish, beyond a reasonable doubt, that they pose no risk to the principal beneficiary and any derivative beneficiaries.
Evidence to support the "no risk to the beneficiary" claim may include:
- Certified records of successful completion of counseling or rehabilitation programs.
- Evaluations by licensed professionals.
- Evidence of intervening good service.
- Certified copies of police reports and court records related to the offense.
These documents must convincingly demonstrate that the petitioner has reformed or that the circumstances of the conviction were less severe than they appear. If USCIS determines that the petitioner poses a risk to the beneficiary, the petition will be denied, and the decision must be clearly articulated. Petitioners have the right to appeal adverse decisions to the Administrative Appeals Office (AAO).
Find an Los Angeles Immigration Attorney Near Me
Under U.S. immigration policy, family immigration allows U.S. citizens and lawful permanent residents (LPRs) to sponsor certain family members for a visa or green card. While offering a tangible way to unite families, this path has its own complexities.
The sections above provide a wealth of information, addressing common inquiries that petitioners might have. These cover key areas such as eligibility criteria, required documentation, processing times, potential legal hurdles, and the impact of specific circumstances on the petition process.
Since navigating immigration law, especially when it comes to petitioning for family members to immigrate to the United States, is daunting, you require the expertise of a dedicated immigration attorney.
At California Immigration Attorney, we specialize in providing comprehensive legal assistance to those embarking on the family immigration petition process. Contact us today at 424-789-8809 to review your case and develop strategies to expedite the petition.