Family-Based Immigration

Yes, you can file an I-130 Petition if the qualifying relationship exists. In the United States, Lawful Permanent Residents (“Green Card” holders) and U.S. Citizens (U.S. Born or Naturalized) can apply or “petition” for certain family members, which may open a path that leads to permanent immigration to the United States.

• Immediate Relative Petitions: Parents, Spouses, and Minor Children (Unmarried and Under 21 years of age) of U.S. Citizens. There are no numerical visa limitations for these family members, and no priority date to wait for before the approved immigrant visa can be used.
• Preference Category Petitions: All other Family Petitions that do not fall under the Immediate Relative description. These Petitions are subject to numerical visa limitations and a priority date. Not all family members can be petitioned for, and each category and country of origin may have different priority date wait times.
  • F1: Unmarried Children over 21 years old, of U.S. Citizens
  • F2A: Spouses and Minor Children (Unmarried and Under 21 years old), of Lawful Permanent Residents
  • F2B: Unmarried Children over 21 years old, of Lawful Permanent Residents
  • F3: Married Children of U.S. Citizens
  • F4: Siblings of U.S. Citizens, whether married or not

Maybe! According to the descriptions above, Lawful Permanent Residents cannot petition for their Parents, Siblings, or Married Children.  In these cases, you must be a citizen to file a petition for these family members.  In addition, a child of a Permanent Resident that gets married after the Petition is filed automatically destroys that Petition, whether or not it was already approved, unless the petitioner naturalizes before the marriage occurs.

For those categories of family members that you can file for as a lawful permanent resident, becoming a citizen can sometimes reduce the amount of time the beneficiary needs to wait for the second step. In rare cases, it can even increase the priority date wait time, but there may be options to opt-out of such category change.

A petitioner need not wait until his or her naturalization ceremony before filing a petition, as it is a simple process to “update” USCIS as to the Petitioner’s status and the ultimate category of the I-130 immigrant visa approval. We also may be able to file a residency application while the I-130 petition is still pending!

There are also other benefits to a U.S. Citizen’s petition that were not available to a lawful permanent resident petitioner, such as stronger protections under the Child Status Protection Act (“CSPA”), the ability to adjust status from within the United States if the beneficiary entered with inspection (in some circumstances), and certain waivers that are automatically attached to a U.S. Citizen’s petition that apply to adjustment of status..

Family-based I-130 Petitions have little to do with the Petitioner’s own criminal background, outside of certain crimes involving domestic/family relations or children.

There is no limitation on how many family members a Petitioner can file for; instead, the focus of the Petition is on the lawful status of the Petitioner and the valid or bona fide relationship between the Petitioner and the Beneficiary.

The priority date of a petition is determined by the date of filing, or the date that USCIS receives the petition, and can be found on an I-130’s receipt and approval notices. The Visa Bulletin, which can be found here determines when a priority date is current, and is updated month to month based on the number of available immigrant visas. If your Petition falls under one of the Preference Categories defined above, it is very important to keep track of the Visa Bulletin and make sure your address is updated with, as oftentimes USCIS will not notify you when your priority date becomes current.

If you are a U.S. Citizen or a Lawful Permanent resident, you may be eligible to Petition for your family members, whether or not they reside in or outside of the United States. The forms are available for free on the USCIS website. Be careful when preparing Petitions on your own, because each type of Family Petition requires appropriate filing fees and different evidence.  Depending on the type of Petition and USCIS’ current processing times, it may take anywhere between 6 months to several years to receive an approval on your Petition, so be sure to keep your address updated with USCIS at all times.

While it is not required to have an attorney to prepare your filings, all U.S. Immigration filings can be tricky and complicated, so it is often worth retaining the help of an attorney familiar with Immigration filings and laws.

In order to be eligible to petition for a fiancée living abroad, you must show:

• You are a U.S. Citizen, either by birth or through naturalization;
• You have met your foreign national Fiancé(e) at least once in the past two years, unless you qualify for a waiver;
• Both you and your Fiancé(e) are legally free to marry, meaning all previous marriages have been terminated either through death, divorce, or annulment;
• You must intend to marry within ninety (90) days of entering the country; and
• The relationship must be valid, and both you and your Fiancé(e) must have the bona fide intent to establish a life together, NOT for the sole purpose of obtaining an immigration benefit.

If you can establish the above requirements through supporting evidence, your immigrant Fiancé(e) may enter the country through a visa interview at the U.S. Consulate, typically from his or her home country. After the marriage is completed within the first ninety (90) days since arriving in the U.S., the now-spouse may file for permanent residency.

If your foreign national Fiancé(e) has minor (under age 21), unmarried children, they may also be able to accompany their parent on a K-2 visa, which is issued to derivatives of K-1 visa recipients. While separate petitions are not filed for these K-2 derivative children, a separate visa must be issued for each child while undergoing the consular interview step of the process. These derivative children who enter with the K-1 Fiancé(e) must also undergo adjustment of status to become permanent residents.

Please consult with an attorney to discuss the special conditions that apply to K-1 and K-2 visa permanent residents, who will likely receive two-year conditional permanent residency. For more information about filing for permanent residency following an approved Fiancé(e) Visa, click here (Link to AoS).

For Spouses and minor, unmarried children of U.S. Citizens, the typical processing time for the I-130 Petition can range anywhere from seven (7) to twelve (12) months to receive an approval.  Unfortunately, the processing time for Form I-129F, Petition for Alien Fiancé(e), filed for an already-married spouse, takes about the same amount of time to process. While things may change in the future, this is why there is currently very little benefit—if any—to filing for a K-3 and K-4 visa at this time.

If your late U.S. Citizen spouse already filed an I-130 Petition for you that was either pending or approved at the time of his or her death, you do not need to file any new forms. Your I-130 Petition will be automatically converted to a Form I-360, Self-Petition for Widow(er). As an added benefit, any minor, unmarried children without their own petitions may be included on this Form I-360, regardless of whether your late U.S. Citizen spouse filed one for them.

Please note: You must not have been divorced or legally separated from your U.S. Citizen spouse at the time of his or her death, and your eligibility to obtain lawful permanent residency as a widow(er) ends upon your legal remarriage.

If your late U.S. Citizen spouse did not file an I-130 Petition for you before his or her death, the Form I-360, Self-Petition for Widow(er) can be filed by you on your own behalf. If approved, you will be have an “immediate relative” immigrant visa granted to you.

Please note: You must not have been divorced or legally separated from your U.S. Citizen spouse at the time of his or her death, and you must file the Form I-360 no more than two (2) years after your U.S. Citizen spouse’s death. Just like a regular marriage-based petition, your eligibility to obtain lawful permanent residency as a widow(er) ends upon your legal marriage.

If you are the beneficiary of a petition that was approved prior to the death of the petitioner, you may be eligible for Humanitarian Reinstatement if you can meet the following requirements:

• You are the principal beneficiary of an immigrant visa petition (I-130);
• The petition was approved;
• The petitioner died after the petition was approved, but before you obtained residency; and
• You have a substitute sponsor, or under certain circumstances you qualify to sponsor yourself
  • Your substitute sponsor must be a U.S. Citizen, National, or Lawful Permanent Resident, over the age of 18 years, and must be related to you as your spouse, parent, mother or father-in-law, sibling, child, son or daughter-in law, sister or brother-in-law, grandparent, grandchild, or legal guardian.
• You must warrant a favorable exercise of discretion, meaning that the “pros” in granting reinstatement outweigh the “cons”. Factors include, but are not limited to:
  • Impact on your family residing lawfully in the United States;
  • Your advanced age or other health concerns;
  • The length of your lawful residence in the United States;
  • Your social or significant ties to the United States, and lack thereof to your home country;
  • Unusually lengthy government processing delays; and
  • Any and all other factors that weigh in favor of reinstatement.

In order to request Humanitarian Reinstatement from USCIS, you must send a written correspondence with supporting evidence attached to the USCIS office that originally approved the petition. You can identify the office that approved the petition by looking at the Form I-797C, Notice of Approval for the I-130 Petition.

There is no form or filing fee to request humanitarian reinstatement, but a request often involves more evidence and legal arguments beyond what would be included in a simple letter asking for relief. For that reason, we recommend that visit us today to speak about hiring an experienced immigration attorney to prepare and submit your humanitarian reinstatement request, as the consequences of a denial could be serious. If your request is denied, the petition is considered to have been revoked as of the date of the petitioner’s death, and the beneficiary shall be unable to obtain lawful permanent residency using that immigrant visa.

If the petitioner died before the I-130 was approved, you are not eligible for humanitarian reinstatement; however, you may still be eligible for Section 204(l), Relief for Surviving Relatives.

If you are the beneficiary of petition where the petitioner or principal beneficiary has died, and you were residing in the United States at the time of the death, you may be eligible for Section 204(l) Relief for Surviving Relatives if you meet the requirements and fall under one of the following categories:

• You are the principal or derivative beneficiary of an immigrant visa petition (I-130) that was properly filed with USCIS, and the petitioner died; OR
• You are the derivative beneficiary of an immigrant visa petition (I-130) that was properly filed with USCIS, and the principal beneficiary died; AND
• The petitioner or principal beneficiary died at any point between proper filing and the beneficiary obtaining his or her residency; AND
• At least one beneficiary or derivative beneficiary resided in the United States when the relative died, and continues to reside in the United States when seeking relief; AND
• Granting you relief pursuant to Section 204(l) is not adverse to the public interest, and you warrant an exercise of favorable discretion; AND
• You have a substitute sponsor, or you are eligible to waive the sponsor requirement

In order to request Section 204(l) relief from USCIS, you must send a written correspondence with supporting evidence to the relevant USCIS office, which will depend on your specific circumstances. If you retain Potra Law Firm to file your request, we will determine the best path for you, which may even allow you to send your request with an application for permanent residency. Like Humanitarian Reinstatement, there is no form or filing fee to request Section 204(l) Relief.

As you can likely tell, Humanitarian Reinstatement and Section 204(l) Relief are very similar, with just a few important differences. For that reason, an immigration attorney with high attention to detail should assess whether you qualify for one or both forms of relief. If you qualify for both, USCIS directs the beneficiary to request both forms of relief in the same correspondence.

While the grief of losing a family member may delay you from thinking about your immigration process at all, once you are back on your feet you should contact an attorney immediately to assess your options. Upon the death of a petitioner or principal beneficiary, an immigrant visa is automatically revoked by function of law. If you hope for any chance of reinstating that immigrant visa, your request for relief with supporting documents needs to be timely filed with little delay.