Permanent Residency through Family-Based Immigration
Family-based immigration is the most common form of obtaining lawful permanent residency, which is more commonly known as a “green card.” Family members of United States citizens and lawful permanent residents (LPRs) of the United States may obtain legal permanent residence in the United States. Filing for permanent residency also allows one to obtain an employment authorization document, commonly referred to as a “work permit,” which authorizes lawful employment in the United States pending a decision on the application for permanent residency!
I have helped husbands and wives and parents and children stay together through the family-based immigration process. The petitioning process, while appearing simple, can be daunting, especially if a petition is based upon a marriage that occurred after the alien spouse was placed in deportation or removal proceedings. Additionally, if the permanent resident card application is not prepared properly and fails to disclose the truth, consequences can be severe.
The Process of Obtaining a Green Card
The Immigrant Visa Petition
The first step in obtaining a green card is to obtain an approved immigrant visa petition. Your green card application will only be adjudicated after your visa petition has been approved, so the visa petition is a very important part of the process. An immediate relative (spouse, parent, or child over the age of 21) or an employer can file a visa petition on behalf of an alien. Depending on who is filing the petition, the form will be either Form I-130 (from a relative) or Form I-140 (from an employer). There are numerous documentation requirements attached to a visa petition for it to be considered properly filed. If proper documents are not submitted, you risk triggering a request for additional evidence, significant delays, and a possible denial of the petition.
Depending on your case, the visa petition may be approved without an interview. However, if the visa petition is based upon a marriage to a United States citizen, and if the government has any doubts about the validity of the marriage, the alien and the United States citizen may be called to a local USCIS office for a “marriage fraud” interview. The USCIS will then adjudicate the visa petition either at the interview or soon thereafter.
Adjustment of Status (INA § 245) – Adjudicating the Green Card Application
Once a visa petition is approved, the green card application (Form I-485) can be adjudicated. This process is commonly called adjustment of status. Adjustment of status can occur administratively before the U.S. Citizenship and Immigration Services or defensively as a form of relief from deportation or removal before an Immigration Judge.
To obtain adjustment of status, the alien must be a beneficiary of either an approved visa petition or a visa petition that has been filed on his or her behalf and is pending. There are certain bars to adjustment of status, however. If an alien is inadmissible for any reason under INA § 212(a) (i.e. for fraud or a crime involving moral turpitude), he or she may need to seek a waiver under either INA § 212(h) or INA § 212(i) in conjunction with adjustment of status. Learn more about the special waivers required for criminal conviction when applying for adjustment of status.
SIX categories of family-based permanent residency:
- Immediate Relatives (spouses and minor children of U.S. citizens. For immigration purposes, a “child” is a person under the age of 21).
- First Preference (unmarried sons and daughters of U.S. citizens. For immigration purposes, “son” and “daughter” means a child over the age of 21)
- Second Preference (2A) (spouses and unmarried children under the age of 21 of lawful permanent residents)
- Second Preference (2B) (unmarried sons and daughters over the age of 21 of lawful permanent residents)
- Third Preference (married sons or daughters of U.S. citizens. This means a child over the age of 21)
- Fourth Preference (brothers and sisters of U.S. citizens)
The immediate relative category is not subject to an annual quota. First, Second, Third, and Fourth preferences, however, are subject to a quota.
Click here to access the Department of State’s Visa Bulletin for the current month, which indicates the processing time for each category.
Affidavit of Support Under Section 213A of INA (Form I-864)
USCIS requires all adjustment of status applicants to submit Form I-864 (or Form I-864EZ), Affidavit of Support Under Section 213A of the INA. This application may be the most important part of the adjustment of status process and USCIS routinely scrutinizes this more than anything else.
The petitioner who has filed the visa petition is always required to submit this form, regardless of income. Based upon how many people are counted in the applicant’s “household” for immigration purposes, if the petitioner’s income alone is not sufficient to meet the current Poverty Guidelines (Form I-864P), then a joint sponsor or a co-sponsor is required to submit Form I-864 (or Form I-864A for a co-sponsor who is a “household” member). Every person submitting an Affidavit of Support is required to submit their tax returns and W-2 statements.
Important Note about Taxes: USCIS reviews tax records very carefully, so please take note of the following:
If you are married to someone and living together with that person, with very few exceptions, you should file using the filing status of MARRIED FILING JOINTLY.
If you are married to someone and but not living together with that person, you may use the filing status of MARRIED FILING JOINTLY or MARRIED FILING SEPARATELY.
If you are a married person, under NO circumstances may you use the filing status of HEAD OF HOUSEHOLD.
If you are a married person, under NO circumstances may you use the filing status of SINGLE.
If you are NOT a married person, you may NOT use either the MARRIED FILING JOINTLY or the MARRIED FILING SEPARATELY filing status.
If your taxes do not comply with the filing status described above, prior to submitting your taxes to the USCIS, you should consult with an experience certified public accountant to have your previously filed taxes reviewed and if necessary, amended to reflect an accurate filing status.
Tip: You should always pay taxes regardless of whether you are here legally or not. If you do not have a social security number and cannot obtain one, you must obtain and use an IRS Individual Taxpayer Identification Number (TIN). Click here to learn how to obtain a tax identification number so you can pay your taxes!)
Click here to access the Internal Revenue Service for more information about paying taxes.
Additionally, keep in mind that you are required to report ALL of your income and your tax returns should reflect that.
Conditional Permanent Residency
If you have been married for less than two years to a United States citizen or a lawful permanent resident spouse at the time you are granted residency, you will only be granted permanent residency status for two years. Within 90 days of your second marriage anniversary, you (the alien spouse) must file Form I-751 to remove the condition on your residency. This requires submission of significant documents establishing that you and your spouse maintain a bona fide marriage. Typically, this application is filed jointly by the two spouses if you two are still married at the time. In the event of a divorce, the alien spouse can file the application by himself or herself. However, he or she must prove that the marriage was entered into in good faith at its inception.
Contact me if you wish to discuss your specific situation about a family-based petition or adjustment of status, including preparation and filing of petitions and green card applications.