Family-Based Immigration

Permanent Residency through Family-Based Immigration

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 noncitizen 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.

Obtaining a Green Card

Although the process of obtaining a green card isn’t the same for everyone, the process often includes the following general steps:

  1. Filing a visa petition
  2. Filing a green card application
  3. Submitting an affidavit of support

Depending on your situation, all three steps may be completed together – or it may be necessary to complete the first step on its own before proceeding to the other steps. See the details below for more information, or if you’re wondering about your own situation and what to do next, schedule a consultation.

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 noncitizen. 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 noncitizen 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 noncitizen 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 noncitizen 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.

6 Categories of Family-based Permanent Residency

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Second Preference (2A) (spouses and unmarried children under the age of 21 of lawful permanent residents)

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Immediate Relatives (spouses and minor children of U.S. citizens. For immigration purposes, a “child” is a person under the age of 21).

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First Preference (unmarried sons and daughters of U.S. citizens. For immigration purposes, “son” and “daughter” means a child over the age of 21)

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Second Preference (2B) (unmarried sons and daughters over the age of 21 of lawful permanent residents)

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Third Preference (married sons or daughters of U.S. citizens. This means a child over the age of 21)

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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 and consult with an experienced tax professional when completing your tax returns:

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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.

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If you are NOT a married person, you may NOT use either the MARRIED FILING JOINTLY or the MARRIED FILING SEPARATELY filing status.

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If you are a married person, under NO circumstances may you use the filing status of HEAD OF HOUSEHOLD.

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If you are a married person, under NO circumstances may you use the filing status of SINGLE.

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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 noncitizen 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 noncitizen 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.

Testimonials

Varun K. (MA)

“We had an exceptional experience working with Ruchi for our marriage-based adjustment of status. Throughout the entire process, Ruchi demonstrated extensive knowledge, responsiveness, and patience. She expertly guided us from the initial consultation to the completion of our application, addressing all of our concerns and ensuring that our paperwork was in order. Ruchi’s attention to detail and ability to clearly explain the process were particularly valuable. She provided regular updates and was always available to speak with us. Thanks to Ruchi’s exceptional expertise and guidance, we were able to navigate the process with ease. I highly recommend her to anyone seeking an immigration lawyer.”

K. Angara (MN/GA)

“Ruchi has been absolutely phenomenal. During the process of my adjustment of status, I had moved between multiple states. Throughout the process, Ruchi was very communicative and extremely responsive. She is meticulous, thorough, and patient. Her meticulousness if reflected in the fact that she helped me understand what each document I was submitting was actually for and how it added strength to my application. I loved how Ruchi had a dedicated dropbox for our application and the ease it created for adding and removing documents. My wife and I are very lucky to have worked with Ruchi and highly recommend her and her law firm for family-based immigration. Thank you so much, Ruchi!”

G. Heichal (NY)

“Ruchi helped my husband and me with our marriage-based green card application. Ruchi is extremely professional and responsive. No matter what we asked her or when, she responded within a couple of hours at most. Ruchi is also very methodical and organized which is very important in dealing with the Immigration Service. If you are looking for a professional and down to earth legal counsel who doesn’t charge exuberant fees, we definitely recommend that you get in touch with Ruchi.”

Lisa Bourque (Kentucky)

“Ruchi made a scary process very comfortable for us. She more than prepared us for my Green Card interview and we wowed the officer even! It didn’t matter how many questions we had for Ruchi, she took the time to answer every single one of them. Very efficient and timely and we could not have done this without her.”

Neeha Reddy V. (NY)

“I found Ruchi in 2018 through a Google search and visited her for a consultation. I was on an L-1 work visa and had just married a Legal Permanent Resident and I wasn’t fully sure if and how I could apply for permanent resident status in the US. After my initial consultation with Ruchi, I decided to work with her to file all my forms which were the initial I-130 petition followed by the Adjustment of Status (I-485). All through the process, Ruchi was very clear in communicating all the must-do and don’t-do advice. This entire process has been as smooth as it can get and we’ve had to face none of the USCIS processing horror stories one reads about online. I would highly recommend Ruchi to anyone that is considering the family based immigration process, especially in these anxiety-inducing times.

Anu C. (New York, NY)

“Ruchi was a pleasure to work with from the initial consultation until the day our case was approved and green card was in hand. She was always very accessible, responsive, and reliable, and was an extremely knowledgeable resource on timelines, procedures, current immigration laws and what to expect from the process from start to finish. Ruchi was efficient and timely in preparing the paperwork and forms for every stage of the application and was diligent and thorough in creating a comprehensive case file to ensure we were providing all information necessary for a successful adjudication of our case. Ruchi was on top of things every step of the way and we knew we could rely on her to make sure everything was taken care of which was of great help and a huge relief given our hectic schedules. We were in fantastic hands and would not hesitate to highly recommend working with her to anyone. Thanks so much, and keep up the great work, Ruchi!”