HOW DO I SPONSOR MY FAMILY MEMBER TO IMMIGRATE TO THE U.S.?

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HOW DO I SPONSOR MY FAMILY MEMBER TO IMMIGRATE TO THE U.S.?

An introduction to the family preference system.

Much of the immigration to the U.S. that occurs is through sponsorship by a family relative.  Family-based immigration allows for close relatives of U.S. Citizens and legal permanent residents to rejoin their families here in the U.S.   

However, the system is based on categories, each of which has strict annual limits in the number of immigrants allowed each year. This creates backlogs, some of them quite lengthy, in some of these family categories.

The priority is given to “Immediate relatives”.  This category does not have any limit or cap on the number of visas and therefore, there is no “waiting period” other than the amount of time the Department of Homeland Security (or the U.S. consulate abroad) takes to process these visas.  These “immediate relative” categories are:

·                Spouses of U.S. citizens;

·                Unmarried minor children of U.S. citizens; and

·                Parents of U.S. citizens.

Obtaining a green card through marriage.

In the case of marriage, an application must be submitted along with documents to prove the validity of the marriage and an interview takes place at the DHS office, if they are in the U.S.  It generally takes approximately six months to obtain conditional permanent residence for the spouse.  Conditional permanent residence is granted for two years.  

In the case of all immediate relatives in the U.S., an application for a green card can be processed here.  It is not necessary for the relative to be in legal status, but they must have come to the U.S. legally, with a  valid visa.  If they crossed the border without a visa, they do not qualify.

If the spouse is outside the U.S., then an application is filed here and once approved, the relative goes through “consular processing” back home in their home country.

Obtaining permanent residence through family members other than spouses.

You can sponsor other members of your family besides those in this “immediate relative” category, but in each case there will be a long wait for them to get a green card.  The other relative categories have limits on the number of visas and therefore, there are waiting periods, which can run from five to ten years or more.  These relative categories are:

·                Adult children (unmarried) of U.S. citizens (1^st preference category)

·                Spouses and minor children of legal permanent residents (2d preference)

·                Adult children (married) of U.S. citizens (3d  preference category)

·                Brothers and sisters of U.S. citizens ( 4^th preference category)

The waiting periods for each of these visas can be determined (approximately) by checking the U.S. Department of State website or the Visa Bulletin which they publish.  The visa bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

The U.S. Department of State visa bulletin lists each category and the date on which an individual applied in each category who is being processed for a green card currently.  From this date, one can try to extrapolate how long it will take for an application filed today to take before a relative qualifies for permanent residence. 

As you’ll see when you check this bulletin, there are long waits for every category of family sponsorship.         In addition to per category limits to family-based immigration, there are also per country limits. 

Because of higher numbers of immigration to the U.S., persons coming from the countries of Mexico, the Philippines, China, and India have an even longer wait than those from the rest of the world.

While it may seem absurd to file to sponsor your relative given that the wait is over five years, there still are good reasons to do so.  If the annual limits per category are raised in the future, this waiting period will decrease. 

In any case, the sooner you file to bring your relative, the sooner the person will join you here as a green card holder.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for over 10 years by “Super Lawyers”.  See https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html

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WARNING: The foregoing is a summary generally discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case before filing any application or petition.

FIANCÉE VISAS: HOW TO BRING YOUR LOVED ONE TO THE U.S.

By Christopher Kerosky, Esq.

A U.S. citizen can sponsor their future spouse to come to this country on a fiancée visa known as a K-1 visa.  If the visa is approved, the couple must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country. 

How to apply.

To start the process to obtain a fiancée visa, an application is submitted to the Bureau of Citizenship and Immigration Services (USCIS) of the Department of Homeland Security.  In order to prove that the relationship is valid, it is necessary to provide certain documentation with the application such as evidence of the past relationship, correspondence, travel records, other evidence of their time spent together and their courtship.  It is helpful to submit photographs of the couple together, including photos with family members if possible.  We recommend that clients also submit statements from family members confirming that the relationship exists.

It is also necessary to submit financial documents proving that the petitioner US citizen can support the fiancée in the United States financially.  This usually includes tax returns, W2s from an employer and a letter confirming present employment.

Upon submission of the application, the Immigration Service attempts to determine if the relationship is bona fide.  Once approval in the U.S. occurs, there is a consular interview at the Consulate overseas at which the applicant may be asked questions about the relationship.  Usually only the intending immigrant attends this interview.  At the end of the interview, if the officer is satisfied the relationship is bona fide, and all other requirements for the visa are met, the visa is approved. 

Adjustment of status in the U.S.

Once the person comes to the United States, the couple must marry within 90 days.  At that point, there is another procedure known as Adjustment of Status required to obtain permanent residence for the immigrant.  There are more forms to file and documents to submit, with an interview at the end of the application process, which both spouses must attend. 

If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved.  If the marriage is less than two years old, the immigrant is given conditional permanent residence.  This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months. 

Two years after the granting of conditional permanent residence, a new application must be submitted to the immigration service, documenting that the marriage still exists. 

U.S. law does not allow the individual to switch to a different U.S. visa under any circumstances. If the marriage does not occur, the foreign national generally must return to their home country.  So the fiancée visa is not a good option unless the couple are relatively sure they will be married.

Pluses and minuses of the K-1 visa.

The fiancée visa is useful for persons who cannot obtain a tourist visa and are not eligible for a visa waiver; they often have no other way of coming to the U.S. to spend time with a future spouse.  The visa has the benefit of allowing the foreign national to spend up to 3 months with their fiancée living in the U.S. to “test the waters” of their relationship before actually getting married.

One problem with the fiancée visa: it can be a long process, especially now during the Trump Administration.  And once the petition is filed, it is often difficult for the intending immigrant to visit the U.S. on a tourist visa or visa waiver (ESTA).  The U.S. Consulates are often unwilling to grant a tourist visa if a foreign national has a fiancée visa application pending; likewise even if the fiancée has a tourist visa or is eligible to enter the U.S. without a visa, U.S. border officials might turn the fiancée  away at the airport because of the pending application. 

Therefore, Clients should carefully consider their future travel plans before filing the visa application and be prepared for the possibility of being apart for long periods of time.  In the next segment, we will discuss the alternatives to the fiancée visa for couples, and the advantages and disadvantages of each.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law since 1984 and has been recognized as one of the top immigration lawyers in Northern California for 8 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.