Frequently Asked Questions and Answers
Q: What is the family-sponsored immigration? and who can be a sponsor?
A: Family-sponsored immigration is to become a U.S. permanent resident through certain family relations. Normally, a U.S. citizen or legal permanent resident would file an immigration petition with the United States Citizenship and Immigrations Services (USCIS). The U.S. citizen or legal permanent resident is called the sponsor. The alien relative for whom the immigration petition is filed is called the beneficiary.
A U.S. citizen or legal permanent resident can be the sponsor of a family-sponsored immigration petition. However, the sponsor has to meet certain requirements and legal obligations. The sponsor has to submit a legally binding affidavit of support for the beneficiary to USCIS, in which the sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the beneficiary has become a U.S. citizen, or has worked in the United States for 40 qualifying quarters.
Q: As a U.S. citizen, what kind of family members can I sponsor for U.S. Green Card?
A: Spouses of U.S. citizens are eligible for permanent resident status as "immediate relatives". The process of completing and submitting an immigrant visa application for relatives can be confusing. As a U.S. citizen, you can submit an immigrant application if you have a close family relation, and you can sponsor the following family members:
Husband or wife;
Widow or widower of a U.S. citizen;
Brother or sister (including half-brothers and half-sisters);
Son or daughter (including illegitimate children);
Stepson or stepdaughter;
Stepparent of a U.S. citizen child;
Adopted son or daughter;
Father or mother;
Battered or abused spouse or child.
Q: Who can be a beneficiary?
A: The "immediate relatives" of a U.S. citizen (parents, spouses, widows and children being unmarried and under 21 years of age) can immigrate to the United States without being subject to any numerical restrictions. They can apply for U.S. permanent resident status without any waiting time.
The rest of the beneficiaries are divided into several groups called preferences. Each preference is given a numerical quota per year to limit the number of immigrants admitted into the United States. The immigrant visa dates on the Visa Bulletin of the U.S. Department of State are updated monthly, usually around the 14th of each month. The four preferences are as follows:
1st Preference: Unmarried sons and daughters of U.S. citizens;
2nd Preference: Spouses and unmarried sons and daughters of lawful permanent residents;
3rd Preference: Married sons and daughters of U.S. citizens;
4th Preference: Siblings (brothers and sisters) of U.S. citizens.
Q: What is the difference between an immediate relative petition and a preference petition? and what are the annual immigrant visa numbers for family-sponsored preference and employment-based preference?
A: An immediate relative petition can be filed by a U.S. citizen on behalf of a spouse, parent, or child. A preference petition is filed by a U.S. citizen on behalf of a son or daughter, or by a legal permanent resident on behalf of a spouse, son or daughter, or by an employer on behalf of an employee.
The Immigration and Nationality Act (INA) sets an annual family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Also, INA prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
There is NO immigrant visa number limit for "immediate relatives" of a U.S. citizen (parents, spouses, widows and children being unmarried and under 21 years of age)
Q: How do I know if I qualify as a beneficiary or not?
A: Beneficiaries are strictly defined, and one has to meet the definition of its category. Those who do not meet the definitions cannot immigrate to the United States through family-based immigration. The beneficiaries include spouses and unmarried sons and daughters of lawful permanent residents;
An "immediate relative" of a U.S. citizen is the spouse, parent, widow, or child of the U.S. citizen. Specifically, a "child" is the son or daughter of a U.S. citizen, who is unmarried and under the age of 21. An adopted child qualifies as long as the adoption was finalized before the child's 16th birthday. A stepchild qualifies as long as the marriage had occurred before the stepchild's 18th birthday. A "parent" must meet the same test as for the "child". A father-in-law or mother-in-law of a U.S. citizen are not "parents" of the U.S. citizen for immigration purposes.
Q: I am U.S. citizen, what are the requirements to get my spouse a U.S. immigrant visa?
A: To obtain an immigrant visa for your spouse, you must meet the following requirements:
1) You must be legally married. Merely living together does not qualify a marriage for immigration. Unmarried partners are ineligible to sponsor visas to the United States;
2) In most cases, you must have a residence in the U.S. to apply;
3) You must be 18 years old before you can sign the Affidavit of Support, which is a form that will be required later in the process.
Q: As American citizen, how to get my spouse a U.S. immigrant visa, and bring my wife to the U.S. to live?
A: One method is that you can "sponsor" your spouse's immigrant visa for entry to the United States. If you follow this process, your foreign spouse will complete the visa process completely outside the U.S., and then arrive in the U.S. and obtain permanent residency status immediately. You will need to submit an immigrant Petition for Alien Relative, Form I-130, to USCIS.
After the Form I-130 approval by USCIS, the National Visa Center and the U.S. Embassy will complete all the necessary administrative processing, your spouse will be granted an immigrant visa. Your spouse will receive an IR-1 (Immediate Relative) or a CR-1 (Conditional Residency) visa. An IR-1 visa allows your spouse to immigrate to the U.S. A CR-1 visa will be given to you if your marriage is less than 2 years old. It is conditional for two years.
Q: If my wife cannot wait too long to complete the immigrant visa process outside the US, how to bring my wife to the U.S. to live?
A: You spouse can apply for a K-3 visa. The K-3 visa is a non-immigrant visa. K-3 visas are granted normally within a few months. Your spouse should use the K-3 visa to start the process outside of the U.S., then travel to the U.S. to complete the immigration process. In this case, the K-3 application must be made in the country where the marriage took place.
Q: I am U.S. citizen and now live outside the US. How to bring my wife to live in U.S.?
A: If you want to bring your foreign spouse to the U.S., but you are currently living outside the U.S., you must submit a visa petition (Form I-130) to either U.S. Citizenship and Immigration Services (USCIS) or directly to the U.S. Embassy where your foreign spouse resides.
Once the form I-130 visa petition is approved, the foreign-born spouse will receive a packet from the National Visa Center (NVC), which is located in Portsmouth, New Hampshire. The packet informs the foreign spouse of the various documents which must be presented at the immigrant visa interview abroad (e.g., passport, police clearances, results of medical examinations, etc.). The packet includes certain documents requesting biographic data that must be completed, signed and forwarded to the U.S. Embassy or Consulate abroad. Usually, the foreign-born spouse is interviewed and granted an immigrant visa within three to six months.
If you and your spouse are planning to remain outside the U.S. indefinitely, it is not recommended that the alien spouse applying for a U.S. Green Card. The Green Card could be cancelled at the Port of Entry to the U.S. if the alien spouse has spent more than six months outside of the U.S. The Immigration Officer at the Port of Entry will have to determine if the U.S. is your main home, so be prepared for a lot of questions.
Q: I am U.S. citizen and my spouse already lives in the U.S. How to file Green Card application for my spouse?
A: If you both already live in the U.S., the U.S. citizen must submit a Petition for Alien Relative (Form I-130) to appropriate U.S. Citizenship and Immigration Services (USCIS) center to prove that the marriage is genuine. Attached to the Form I-130 petition are the following items:
1) Biographical forms (forms G-325A) for both the husband and the wife with photos attached;
2) Proof of the petitioner's citizenship. This can take the form of a U.S. Passport, a Certificate of Naturalization or Citizenship, or a certified copy of the citizen's birth certificate;
3) A copy of the marriage certificate;
4) Certified copies of the documents that terminated any previous marriages of the husband or wife, including final divorce decrees, and certificates of annulment or death.
At the same time, the foreign-born spouse, assuming he or she entered the U.S. lawfully, should submit an application for adjustment of status (Form I-485), which is an application for a Green Card. Normally, the alien spouse will also have to submit form I-485 with photos, an affidavit of support from the U.S. citizen spouse, application for employment authorization (optional), an application for a travel permit (known as "Advance Parole", operational) - assuming the non-citizen spouse has not been in the U.S. unlawfully for 180 days or more.
Q: We just married, and we don't want to be apart for so long. What can we do to avoid this?
A: You should apply for the K-3 visa in order to work and live legally in the US, while waiting your permanent residence.
Sometimes in order to avoid a lengthy separation, a couple may return to the U.S. immediately after the marriage (using a visitor visa), and proceeds to file the necessary applications once they are both in the U.S. Often the USCIS does not like this, and it is not uncommon for the USCIS to stop the foreign-born spouse at the Port of Entry, and exclude him/her from the U.S. as an intending immigrant. However, if the foreign-born spouse manages to enter the US, USCIS will not deny his or her application for a Green Card solely because he or she entered the U.S. on a temporary visa, when their real intent was to remain permanently in the U.S.
Q: What is a "spouse"?
A: A spouse is a legally wedded husband or wife. Merely living together does not qualify a marriage for immigration.
Common-law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs. In cases of polygamy, only the first spouse may qualify as a spouse for immigration. Same-sex marriages are not recognized by immigration law for the purpose of immigrating to the U.S.
Q: How to bring my wife to the United States? and what is the first step toward an spouse immigrant visa?
A: If you are a U.S. citizen inside United States, file Form I-130 first. If you reside elsewhere outside the United States, file your relative petition at the USCIS office overseas or the U.S. Embassy or consulate having jurisdiction over the area where you live. When the Form I-130 is approved, it will be sent for consular processing, and the consulate or embassy will provide notification and processing information.
The first step is to file a Petition for Alien Relative, Form I-130, with the U.S. Citizenship and Immigration Services (USCIS) for your spouse (husband or wife) to immigrate to the United States. In certain circumstances, a U.S. citizen living abroad can file an immigrant visa petition at a U.S. Embassy or Consulate. To find out whether you can file a petition at a specific post abroad, you must contact that post.
Q: What is the U.S. petitioner's minimum age requirement? Is residence in the U.S. required for the U.S. petitioner?
A: There is no minimum age for a U.S. petitioner to file a petition for a family based immigrant visa. However, you must be at least 18 years of age and have a residence in the U.S. before you can sign the Affidavit of Support (Form I-864 or I-864EZ). This form is required for immigrant visas for spouses and other relatives of U.S. sponsors.
As a U.S. petitioner, you must maintain your principal residence (also called domicile) in the U.S., which is where you plan to live for the foreseeable future. Living in the U.S. is required for a U.S. sponsor to file the Affidavit of Support.
Q: What are the steps at the National Visa Center after Form I-130 approval?
A: After USCIS has approved the Form I-130 petition, it is sent to the National Visa Center (NVC). Once received, the NVC will assign a case number for the petition. When an applicant’s priority date meets the most recent qualifying date, the NVC will send the Choice of Address and Agent, Form DS-3032 to the applicant. (If you have an attorney, the NVC will not send you the Choice of Address and Agent, Form DS-3032.)
NVC will begin processing the applicant’s case by contacting the applicant and petitioner with instructions for submitting the appropriate fees. After the appropriate fees have been paid, the NVC will again contact the applicant and petitioner to request that the necessary immigrant visa documentation be submitted to the NVC, including the Affidavit of Support, application forms, civil documents, and more.
Q: What fees can I expect for a spouse immigrant visa?
A: Fees are charged for the following services:
1) Filing an immigrant Petition for Alien Relative, Form I-130;
2) Processing an immigrant visa application, Form DS-230;
3) Reviewing an I-864, Affidavit of Support (for petitions filed in the United States);
4) Medical examination (costs vary from place to place);
5) Fingerprinting fees, if applicable.
Other costs may include: translations; photocopying charges; fees for obtaining the documents you need for the immigrant visa application (such as passport, police certificates, birth certificates, etc.); and travel expenses to go to the embassy or consulate for the interview. Costs vary from country to country and case to case.
Fees must be paid for each intending immigrant, regardless of age, and are not refundable. Fees should not be sent to the consular office unless specifically requested.
Q: What are the required documentation for immigrant visa application at U.S. Consulate?
A: In general, the following documents are required:
1) Passport valid for six months beyond the intended date of entry into the U.S.;
2) Affidavit of Support (I-864, I-864 EZ or I-864W, as appropriate) from the petitioner/U.S. sponsor.;
3) Application for Immigrant Visa and Alien Registration, Form DS-230, both Part I and Part II;
4) Two recent photographs.
5) Civil Documents for the applicant (such as birth and marriage certificates).
6) Completed Medical Examination Forms.
The applicant must submit for more specific information about documentation requirements, including information on which documents may need to be translated. The consular officer may ask for more information. Take clear, legible photocopies of civil documents, such as birth and marriage certificates, and any required translations to the immigrant visa interview. Original documents can then be returned to you.
The medical examination forms are provided by the panel physician after you have successfully completed your medical examination and vaccinations.
Q: When and how to take the immigrant visa interview?
A: Once the NVC determines the file is complete with all the required documents, they schedule the applicant’s interview appointment. NVC then sends the file, containing the applicant’s petition and the documents listed above, to the U.S. Embassy or Consulate where the applicant will be interviewed for a visa. The applicant, petitioner, and third-party agent, if applicable, will receive appointment emails, or letters (if no email address if available), containing the date and time of the applicant's visa interview along with instructions, including guidance for obtaining a medical examination.
Applicants should bring their valid passports, as well as any other documentation above not already provided to NVC, to their visa interviews. During the interview process, ink-free, digital fingerprint scans will be taken. Applicants will receive their original civil documents and original translations back at the time of interview.
Q: What are the medical examination and vaccination requirements?
A: As an alien spouse in preparing for your interview, you will need to schedule and complete your medical examination and any required vaccinations before your visa interview. Before an immigrant visa can be issued, every applicant, regardless of age, must undergo a medical examination which must be performed by an authorized panel physician.
Applicants are provided instructions by NVC regarding medical examinations, including information on authorized panel physicians. U.S. immigration law requires immigrant visa applicants to obtain certain vaccinations prior to the issuance of immigrant visas.
Q: What is conditional residence?
A: If you have been married for less than two years when your spouse enters the United States on an immigrant visa, the permanent resident status is considered “conditional.” The immigrant visa is a conditional resident (CR) visa, not an immediate relative (IR) visa.
You and your spouse must apply together to USCIS to remove the conditional status within the 90 days before the two year anniversary of your spouse’s entry into the United States on his or her immigrant visa. The two-year anniversary date of entry is the date of expiration on the alien registration card (Green Card).
Q: How long does it take to get an immigrant visa?
A: The length of time varies from case to case according to its circumstances, and cannot be predicted for individual cases with any accuracy. Some cases are delayed because applicants do not follow instructions carefully. Sometimes the U.S. petitioner, cannot meet Affidavit of Support requirements. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a Consular Officer.
Q: What are the ineligibilities for an alien spouse to get immigrant visas?
A: Certain conditions and activities may make an applicant ineligible for a visa. Examples of these ineligibilities include: drug trafficking; overstaying a previous visa; and submitting fraudulent documents. If you are ineligible for an immigrant visa, you will be informed by the consular officer and advised whether there is a waiver of the ineligibility and what the waiver process is.
Q: When I have an immigrant visa, what should I know?
A: If you are issued an immigrant visa, the consular officer will give you your passport containing the immigrant visas and a sealed packet containing the documents which you provided. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the U.S. You are required to enter the U.S. before the expiration date printed on your visa. When traveling, the principal applicant must enter the U.S. before or at the same time as family members holding visas.
A visa allows a foreign citizen to travel to the U.S. port-of entry and request permission to enter the U.S. The alien spouse should be aware that a visa does not guarantee entry into the U.S. The DHS, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S.
Q: What is the "administrative processing"?
A: Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a Consular Officer. Applicants are advised of this requirement when they apply. Most administrative processing is resolved within 60 days of the visa interview.
When administrative processing is required, the timing will vary based on individual circumstances of each case. Visa applicants are reminded to apply early for their visa, well in advance of the anticipated travel date. Before making inquiries about status of administrative processing, applicants or their representatives will need to wait at least 60 days from the date of interview.
Q: We haven't been married very long. Does that matter?
A: If the marriage is less than two years old when the foreign-born spouse becomes a permanent resident, the Green Card will expire after a two-year period. Both spouses must submit a joint petition (form I-751) to remove the two-year condition. You should do this 90 days before the Green Card expires.
Q: Our marriage has ended. Can I stay in the U.S.?
A: If the marriage has ended because you got divorced, your U.S. citizen spouse has died, or due to abuse in the marriage, the foreign-born spouse may eligible to apply for a waiver of the joint petition requirement. However, these waivers are difficult to get.
Q: What is the Adjustment of Status?
A: Adjustment of Status (AOS) refers to the procedure that allows foreign nationals already in the U.S., who are eligible to receive an immigrant visa and for whom immigrant visa number is immediately available, to apply for immigrant status with the U.S. Citizenship and Immigration Services (USCIS).
Adjustment of status within the U.S. is available for immediate relatives of spouses or parents of U.S. citizens provided the alien entered with a visa, even though the alien’s authorized stay has expired. It is also available to alien applicants who have obtained a labor certification indicating that there are no qualified or available Americans who are capable of performing the services the applicant does, and provided the alien applicant is in authorized status.
Adjustment of Status is the final stage of Green Card application. After the completion of this process, the applicant becomes a lawful permanent resident of the U.S. A applicant can opt either for I-485 application or Consular Processing (CP).
1) File form I-485: In this case, the applicant can file for adjustment of status using form I-485 and for family members while in US.
2) Consular Processing: In this case, applicant can apply for adjustment of status at the U.S. Consular office in their home country.
Adjustment of Status is a procedure allowing certain foreign nationals already in the U.S. to apply for immigrant status. Foreign nationals admitted to the U.S. in a nonimmigrant, refugee, or parolee category may have their status changed to a U.S. lawful permanent resident, if they are eligible to receive an immigrant visa which is immediately available.
Q: What is the purpose of the I-485 application to adjust status to U.S. permanent residence?
A: The Form I-485 Application to Adjust Status to Permanent Residence is a way to process the final stage of the permanent residence process for a foreign national who is already present in the U.S. and wishes to change from his or her current immigration status to that of U.S. permanent resident. In almost all cases, the foreign national must have been maintaining valid immigration status to be eligible.
An filed I-485 application allows a qualifying person to submit applications for employment authorization and travel permission, along with proof of financial support. The process involves filing the petitions and applications with supporting documents, getting fingerprinted, attending an interview, and answering any requests for additional evidence issued by USCIS.
Q: What are the general requirements of Adjustment of Status?
A: Adjustment of status refers to the procedure for becoming a lawful U.S. permanent resident without having to leave the United States. It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad.
1) the alien makes an application for such adjustment;
2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
3) an immigrant visa is immediately available to him at the time his application is filed.
Q: I am already in the United States as a spouse of United States citizen, can I file I-485?
A: Application to Permanent Residence is submitted by an individual wishing to obtain permanent resident status. It is generally filed with supporting evidence and may be filed in conjunction with several other applications or petitions. You may be eligible to apply for adjustment to permanent resident status if you are already in the United States and if one or more of the following categories apply to you.
You are the spouse, parent, unmarried child under age 21, the unmarried son or daughter over age 21, the married son or daughter, or the brother or sister of a United States citizen and have a visa petition approved in your behalf.
You are the spouse or unmarried son or daughter of any age of a lawful permanent resident and you have a family-based visa petition approved in your behalf.
For U.S. citizen's spouse, U.S. citizen's parent, and U.S. citizen's child under age 21, and Form I-130 and Form I-485 can be filed concurrently (at the same time)
Q. As a U.S. Citizens' Spouses who entered the U.S. on K-1 fiancee visa, can I apply for adjustment of status to permanent residence?
A: You may apply for adjustment of status to permanent residence if you were a fiancee who was admitted to the U.S. on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. Your unmarried, minor children are also eligible for adjustment of status.
If you did not marry the U.S. citizen who filed the K-1 fiancee petition on your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the U.S.
If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative.
Q: What is the visa number requirements for Adjustment of Status?
A: You may apply for Adjustment of Status after your immigrant visa I-130 petition is approved by the USCIS, and an immigrant visa number is readily available to you. The visa numbers are limited by law for certain permanent residents. This means that even if the USCIS approves your I-130 immigrant visa petition, you may not get an immigrant visa number immediately.
In certain cases, long time could pass between the time USCIS approves your I-130 immigrant visa petition and the Department of State gives you an immigrant visa number for I-485 approval.
Q: What is the exempt from the visa number requirement for immediate relatives of United States citizens?
A: You must have an immigrant visa number available from the State Department unless you are in a category that is exempt from visa numerical limitations. Immediate relatives of United States citizens are exempt from this requirement. Immediate relatives of U.S. citizens are parents, spouses, and unmarried children under 21.
Other immigrant categories that are exempt from visa numerical limitations and do not need a visa number include special immigrant, juvenile, and special immigrant military petitions.
For family members of lawful permanent residents, visa numbers are limited by law every year. This means that even if the USCIS approves an immigrant visa petition for you, you may not get an immigrant visa number immediately. In some cases, several years could pass between the time USCIS approves your immigrant visa petition and the State Department gives you an immigrant visa.
Q: What is the requirement of Grounds of Admissible for I-485 application?
A: The I-485 applicant should be "admissible", i.e. he or she is not subject to the grounds of inadmissibility. Generally, foreigners in the U.S. without having been inspected or paroled are regarded inadmissible. The ineligibility to filing I-485 application include:
1) An alien entered the country in illegal way or in transit without a visa;
2) The alien is employed in the U.S. without USCIS approval. But this rule is not applicable for a person if he or she is an immediate relative of a U.S. citizen;
3) The alien can not adjust status if the alien is now or before has been out of status, or if the alien has ever broke the rules and terms of a non-immigrant visa, which requires that the I-485 applicant has never violated his or her status in any way).
Q: What are eligibility to I-485 adjustment of status for family-based immigration?
A: An alien applicant should either have approved family based I-130 immigrant petition or filing it concurrently at any possible time. The family-based petition categories include parent, child, marital, fiancé, and other immediate relatives of either U.S. citizens or Green Card holders.
Q: What are the exceptions to the I-485 application requirement of maintaining lawful status in U.S.?
A: The following individuals are not required to maintain lawful status in order to adjust their status to U.S. permanent resident within the U.S.:
Immediate relatives of U.S. citizens;
Special immigrant children;
Former employees of international organizations and family members;
Immigrants who have served honorably in the U.S. military.
Q: What are the benefits of filing I-485 application for Adjustment of Status
A: The benefits of Adjustment of Status includes:
1) You can maintain valid status in the U.S. while your I-485 Adjustment of Immigration Status application is being processed;
2) You and your spouse are permitted to apply for an Employment Authorization Document (EAD) as work permit, and take employment while your Adjustment of Status application is pending;
3) You can file Adjustment of Status application concurrently with immediate relative green card petitions, and employment-based first, second and third preference categories.
Q: Where to file I-485 application?
A: The I-485 adjustment applications are normally submitted to the USCIS Service Center. Application is generally submitted by mail, and approved either by mail or after an interview at one of the USCIS district offices. If all the procedures go well, the applicant can accomplish the permanent resident status (“Green Card”) in the U.S. by stamping the immigrant visa in his/her passport.
Q: When can I file the the I-485 application to adjust status to Permanent Residence?
A: If at all possible and advisable, the application will be filed after the I-130 approval, or simultaneously with the I-130. However, there are times when the I-485 cannot be filed along with the I-130, often an immigrant visa is not yet available, or your "priority date" is not current.
Q: What do you mean the immediate availability of a visa?
A: This I-485 application requirement can be satisfied in one of two ways. The first instance relates to immediate relatives of U.S. citizens, who always have an immediately available visa. The second instance refers to those individuals who qualify for one of the employment-based or family-based visa preferences and have a current “priority date.”
Q: What are the eligibility categories to file Form I-485 application?
A: You can file form I-485 under one of the following categories:
Form I-485 is based on an underlying Form I-140, Immigrant Petition for Alien Worker;
Spouse, parent, unmarried son/daughter under age 21 of a U.S. citizen with an approved or concurrently filed Form I-130;
Beneficiary of an approved Form I-130 filed by a qualifying relative, qualifying derivative, family-based beneficiary;
K-1 Fiancé(e) (and K-2 dependents) whose Form I-485 is based on an approved Form I-129F, and applicants who are beneficiaries of an approved Form I-360, as a battered spouse or child;
Diversity lottery winner eligible to file Form I-485.
Q: What are exceptions for the I-485 application fees?
A: There is a filing fee for the I-485 application plus a biometrics fee. The exceptions for the application fees are listed below:
There is no fee for applicants who are filing Form I-485 based on having been admitted to the United States as a refugee;
Applicants of 80 years of age or older are not charged a biometric fee;
Applicants under 14 years of age: filing with the I-485 application of at least one parent have a fee with discount.
Q: What is the medical examination process?
A: All I-485 applicants must pass a medical examination conducted by a civil surgeon approved by the USCIS. You can find the USCIS approved civil surgeon in your area in USCIS web site, or You can contact USCIS' National Customer Service Center at 1-800-375-5283 to find an approved civil surgeon in your area.
The civil surgeon will record the results of the examination on the Form I-693 and seal it an envelope which should be submitted to USCIS along with I-485 application. You are responsible for paying all doctor and laboratory fees for the exam. You must carry your passport or other form of photo identification, and bring your medical and vaccination history. If a condition is diagnosed which makes you inadmissible, you may still be eligible for immigration after completing treatment for the condition.
Q: What is the fingerprinting process
A: When applying for I-485, you will be fingerprinted so the FBI can check criminal records. The USCIS accepts fingerprint cards prepared only by authorized sites such as Application Support Centers (ASCs), and U.S. Consular offices and military installations abroad.
Once you file for I-485, the USCIS will send you a letter with an appointment for fingerprinting at the nearest ASC location. You must have the letter with you when you go in for fingerprinting. There is a fee charge per person.
Q: Could I get a Work Permit after I-485 application?
A: Applicants for adjustment to permanent resident status are eligible to apply for a work permit while their cases are pending. You should use USCIS Form I-765 to apply for a work permit (Employment Authorization Document, or EAD)
You do not need to apply for a work permit after you adjust to permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will prove that you have a right to live and work in the United States permanently.
Q: When can I file the Employment Authorization Document (EAD)?
A: Application for EAD can be filed concurrently with I-485 or any time after that, as long as I-485 application is pending. Your eligible family member like spouse can also apply for an EAD.
An approved EAD allows you or your spouse to work. The primary applicant may take a part-time job or start a business, as long as continue working for the employer who filed for the Green Card. Depends on the USCIS Service Center, the EAD may take few weeks to few months to get approval.
Q: What is the Advance Parole?
A: The Advance Parole or Travel Document is used to apply for admission to the United States upon return from abroad without having to obtain a visa from a U.S. Embassy or Consulate. You must fill Form I-131 for Advance Parole. There is a non-refundable filling fee to be paid by check or money order.
The Advance Parole is usually issued for the time when the I-485 application is pending, and it is valid for multiple entries. Once your Advance Parole (Travel Document) application is approved, you will receive 2 copies of form I-512. You must carry all 2 copies when you travel out of the U.S. for the first time. One copy will be taken by the the USCIS officer at the port of entry. The second copy is for you, and should be used during all subsequent trips.
Q: How to obtain Advance Parole?
A: An alien must file Form I-131 - Application for Travel Document. The Advance Parole is permission to reenter the United States after traveling abroad. Advance Parole is an extraordinary measure used sparingly to allow an otherwise inadmissible individual to enter the United States due to compelling circumstances. By law, certain individuals must apply for a travel document and have Advance Parole approved before leaving the United States.
Attempts to reenter the United States without prior authorization may have severe consequences, since individuals requiring Advance Parole may be unable to return to the United States, and their pending I-485 applications may be denied or administratively closed. Applicants planning travel abroad should plan ahead since applicants can anticipate processing times of about 90 days, depending on the USCIS Service Center.
Q: Can I travel outside the United States after I-485 application?
A: If you are applying for I-485 adjustment to permanent resident status, you must receive advance permission to return to the United States if you are traveling outside the United States without valid H or L visa or status. This advance permission is called Advance Parole.
If you do not obtain Advance Parole before you leave the country and you are not in H or L visa or status, you will abandon your I-485 application with USCIS, and you may not be permitted to return to the United States.
Q: What are the 3 years and 10 years inadmissible requirements?
A: Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission to lawful permanent resident status, even if they have obtained Advance Parole.
Aliens who have been unlawfully present in the United States for more than 180 days, but less than one year, are inadmissible for 3 years; those who have been unlawfully present for one year or more are inadmissible for 10 years. Aliens who are unlawfully present, then depart the United States and subsequently reenter under a grant of parole, may still be ineligible to adjust their status.
Q: What about my family members' I-485 applications?
A: This is the stage where your immediate family members are formally a part of the process, in that separate I-485 Application to Adjust Status to Permanent Resident are filed for each family member. The same forms and documents filed for the main applicant are also filed for these family members, except the employment authorization applications. But you cannot obtain permanent residence for children over the age of 21 based upon your application.
Q: Are my dependents eligible for I-485 application? and what kind of documents are required?
A: Each family member who desires a U.S. permanent residence must file a separate I-485 application.
The I-485 adjustment process involves the investigation of an individual's identity, health, criminal background, and the ability of financial support in the United States. The employment-based adjustment applications for family members must also be filed at a USCIS Service Center.
Q: What personal documents will my family and I need to have for the I-485 application?
A: You and family members must have birth certificates (each birth certificate must indicate full name, the full names of each parent, date of birth, and place of birth), marriage certificates and other relevant documents before the I-485 Application to Adjust Status to Permanent Residence can be filed. You may also wish to obtain records of all vaccinations received to provide to a USCIS approved physician when the required medical exam is performed.
Q: What are the requirements for immigration photographs?
A: The USCIS will accept standard passport photographs where the alien applicant is facing the camera. All photos must be identical. You can read the regulations at the USCIS website, or visit the Department of State's guidelines for photographs website to find out how you can take photos to meet the requirements.
Q: What happens when my I-485 is approved?
A: Normally, the Approval Notice/Welcome Notice will come to the alien applicant. You can take this notice to a local USCIS District Office and get a Permanent Residence stamp in your passport, which can be used to prove eligibility for all benefits to which US permanent residence entitles you, such as unrestricted employment or travel.
This stamp is temporary, normally one year in duration, but the status does not expire even if the stamp does. The foreign national will receive the actual permanent residence card (Green Card) in the mail, normally in one to six months from the date of the approval. The exact length of time it takes to get the card is often erratic.
Q: What is the temporary Green Card stamp?
A: If your interview is waived or if it is completed, and you meet all I-485 application requirements, you will receive an I-485 approval letter from the USCIS. You must go to the local USCIS service center with your passport and all I-94 and EAD cards. A temporary Green Card stamp (I-551) will be placed on your passport. This is an interim Green Card in case you need to travel out of the US. Within a few months, your Green Card will arrive in the mail, But it is not green in color, and looks more like a driver's license or a credit card.
Q: Can I appeal the I-485 decision if it is denied?
A: If your I-485 application to adjust status to permanent residence is denied, you will receive a letter that will tell you why the application was denied. An applicant can not appeal the USCIS decision of employment-based I-485 application.
The only applications for permanent residency of Form I-485 which can be appealed to USCIS are those based on a marriage which took place while the alien's application was in process, or those based on Section 586 of Public Law 106-429, adjustment of status for certain nationals of Vietnam, Cambodia and Laos. These appeals must be made to the Administrative Appeals Unit (AAU).
Q: How long is the approved I-485 valid?
A: The I-485 Permanent Residence status is valid indefinitely, as long as permanent residence is not abandoned through absence of six months or longer from the U.S.
Q: I want to file a Immigrant visa application for my wife. How could your package of "Complete Do-It-Yourself Package of Green Card Application for U.S. Citizen's Spouse" help me?
A: To help you filing U.S. Green Card petition for your brother or sister, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Green Card Application for U.S. Citizen's Spouse", based on our extensive and practical immigration experience.
In this "Complete Do-It-Yourself Package of Green Card Application for U.S. Citizen's Spouse", we provide you the methods of how to prepare the petition, how to collect evidence, how to show your relationship, how to prove your qualification, and how to write the petition cover letter. We also provide step-by-step procedures for the petition, various petition strategies, sample cover letter, samples of filled forms, complete petition check list, petition required forms, detailed explanations of many petition related important issues, and more. With this package, you get all the information you need and the step-by-step knowledge and procedures of how to file an immigrant petition and obtain U.S. Green Card quickly for your spouse.
Q: My son and I have U.S. Green Card based on my marriage to U.S. citizen husband. We are now conditional permanent residents. It is true that the conditional Green Card will expires after two years for my son also, unless necessary steps are taken?
A: Aliens who obtain permanent residence (Green Card) based upon a petition filed by a U.S. citizen spouse may be subject to conditional residence status for two years. Permanent residence will be conditional, if the duration of the marriage has been less than two years at the time permanent residence is granted. This means that it will expire after two years, unless the Form I-751 is filed and approved. This allows the USCIS to double check and reassess whether the marriage was real at the time of its inception.
This same conditional grant of permanent residence is extended to children who obtain permanent residence based upon the marriage of that parent to a U.S. citizen, when the marriage is less than two years in duration. If the parent's marriage is not real, then the children of the alien can not obtain any immigration benefits as the result of the marriage.
Q: I am U.S. citizen. My fiancee is from a foreign country. She came here as a tourist, and over-stayed now for 7 months. We would like to get married soon, but I don not know how or what I need to do as a sponsor to apply for a Green Card for her. What are the requirements for sponsor of a family based immigration petition? Please Help me.
A: Because you are a U.S. citizen and your fiancee was inspected when she entered the U.S., she will be eligible to process her Green Card application inside United States, once you are married.
A U.S. citizen or legal permanent resident can be the sponsor of a family based immigration petition. However, the sponsor has to meet some requirements and legal obligations. The sponsor has to execute a legally binding affidavit of support for the beneficiary, in which the sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the beneficiary has become a U.S. citizen, or has worked in the United States for 40 qualifying quarters.
Q: My husband entered the U.S. illegally without inspection. Since I am a U.S. citizen and we have married for 2 years, is there any way that he can adjust his status inside the U.S. and receive his Green Card?
A: The U.S. immigration law requires that all aliens must present him/herself to an Immigration Officer for questioning at the time of entry into the United States, and this is called inspection. The admission into the U.S. only occurs after the Immigration Officer found the foreign individual to be admissible.
Generally, the proof of inspection and admission is the Form I-94 which is stamped by the Immigration Officer at the port of entry. A foreign individual not legally admitted and inspected cannot adjust his or her status by using the Form I-485 application inside the United States. The application of this immigration requirement is very strict, and some exceptions may include VAWA applicants, Asylees, and certain special immigrants.
Q: My friend came to United States last year and married a U.S. Citizen. But she became a widow before her husband could get time to file immigrant visa for her. Can she apply for immigrant visa to get Green Card by herself to stay in United States?
A: If an alien spouse was married to a U.S. citizen, the alien spouse was in an especially good position to get a Green Card in the United States. Even if the U.S. citizen spouse died before filing the initial visa petition of USCIS Form I-130 for the alien spouse, or before the Form I-130 petition was approved by USCIS.
For this kind of situation, the alien spouse may be able to carry on and file the immigrant visa petition of USCIS Form I-360 by herself or himself. Unlike other family beneficiaries, the alien spouse need not have an Affidavit of Support filed on her or him behalf for this situation. But there is a deadline to file the Form I-360. The alien spouse must file the Form I-360 petition no later than two years after the death of the U.S. citizen spouse.
Q: I am a U.S. citizen. I recently married a foreign student with F-1 visa as my wife. Since my current income is not high, I need to have my parents as a co-sponsor for my wife's Green Card application. What is the affidavit income requirement for a co-sponsor?
A: Generally, the co-sponsor should have an income 125% above the federal poverty lines. Unlike the sponsor, a co-sponsor is not allowed to combine his or her assets to meet the 125% guideline. A co-sponsor should submit with affidavit the following documents to prove their income:
1) The Federal Tax Return for most recent year;
2) The evidence of current employment;
3) The evidence that sponsor’s income is sufficient to meet the income requirement.
Q: My son and I have U.S. Green Card based on my marriage to U.S. citizen husband. We are now conditional permanent residents. Is it true that the conditional Green Card will expires after two years for my son also, unless necessary steps are taken?
A: Because of the concern of the marriage being likely to be shams, U.S. Citizenship and Immigration Services (USCIS) will review the validity of the marriage based Green Card, by initially making the new immigrant a "conditional," not "permanent" resident. Aliens who obtain permanent residence (Green Card) based upon a petition filed by a U.S. citizen spouse may be subject to conditional residence status for two years.
The conditional residency will expire after two years. Before the expiration date, the immigrant will have to apply for permanent status. The application process involves proving that the marriage is ongoing, and supplying further proof that the couple is truly establishing a life together.
This also means that the conditional Green Card will expire after two years, unless the Form I-751 is filed and approved. This allows the USCIS to double check and reassess whether the marriage was real at the time of its inception.
This same conditional grant of permanent residence is extended to children who obtain permanent residence based upon the marriage of that parent to a U.S. citizen, when the marriage is less than two years in duration. If the parent's marriage is not real, then the children of the alien can not obtain any immigration benefits as the result of the marriage.
Q: I will apply for U.S. Green Card soon for my newly marriaged wife who is now in her home country. How to prove a "bona fide" marriage or relationship for the immigration purpose?
A: To obtain a U.S. Lawful Permanent Residence (Green Card) based on marriage, the petitioner has to prove that the marriage is real or "bona fide". This means a marriage in which the two people intend, from the start, to establish a life together as husband and wife.
Although marriage can mean different things to different people, a marriage entered into for the sole purpose of getting the immigrant a U.S. Green Card is clearly not bona fide. It’s called a “sham” or “fraudulent” marriage.
Uncovering sham marriages is a top priority of U.S. Citizenship and Immigration Services (USCIS), which believes that a high number of the marriage-based green card applications it receives are fraudulent. USCIS is well aware that some U.S. citizens accept money to marry a foreign-born person, and some even create illegal, organized services that arrange marriages between U.S. citizens and green card seeking foreign nationals.
The result is that, when it comes to deciding whether a marriage is "bona fide", USCIS will take a hard look, and expect the applicant to provide plenty of solid proof that their marriage is real. Below are some ways that you can prepare to supply the needed proof, including steps you can take far in advance.
* make your spouse a beneficiary on your retirement account or other accounts that require or allow a payout to a beneficiary upon the holder’s death;
* make sure that both spouses are covered under your health insurance policy, if the other spouse doesn't have his or her own insurance;
* if you live together, add your spouse to your house deed, mortgage, or apartment lease;
* if you live together, add your spouse’s name to your garbage, utility, cable, and other bills;
* take out a joint credit card;
* open a joint bank account;
* file joint tax returns;
* join a gym or club together.
Q: My Form I-130 Application for my relative's immigration has been approved by USCIS recently. Now she received notice from U.S. National Visa Center (NVC) to file Form DS-260 Immigrant Visa and Alien Registration Application. Please help us know more information about how to fill the electronic immigrant visa application form DS-260?A: The Form DS-260 Immigrant Visa Electronic Application (also called "Immigrant Visa and Alien Registration Application") replaces the paper-based DS-230 Application for Immigrant Visa and Alien Registration (parts I and II); while the Form DS-261 Choice of Address and Agent will replace the DS-3032 Choice of Address and Agent.
The Department of State (DOS) has implemented use of the DS-260, Online Immigrant Visa and Alien Registration Application, and the DS-261, Choice of Address and Agent. These two forms are used for immigrant visa applicants processing at all U.S. embassies and consulates abroad. The online forms are submitted to DOS through the Consular Electronic Applications Center (CEAC) website at https://ceac.state.gov/ceac/. In order to access the online forms, the applicant must input his or her NVC case number and invoice I.D. number.
All of the information entered online is accessible by the National Visa Center (NVC) and the consular posts, the applicant is not required to submit a paper version to the NVC or bring a copy to the visa interview.
* Most fields on the DS-260 must be completed before the application can be submitted to DOS. The system will not allow you to continue without providing the required information unless the field is specifically marked "Optional."
* If a mandatory field is left blank, an error message will appear and the applicant must complete the required field before proceeding with the form. A partially completed application can be saved by clicking on the "Save" button at the bottom of each page.
* It is recommended that data be saved often to ensure information is not lost. A saved application can be accessed by returning to the website and selecting View/Edit from the Alien Registration section of the Immigrant Visa.
* The applicant can continue completing the form by clicking on the "Edit" button on the right side of the application's listed status. Once all of the fields are completed, the applicant submits the form by clicking on the "Sign and Submit Application" button.
* Should the applicant need to make any changes to the form after submission, he or she will have to contact the NVC to request access to the form. If a case has already been sent by NVC to the appropriate U.S. embassy or consulate interview, any changes to the form will have to be made at the post.
Q: My wife has a conditional Green Card (or conditional permanent resident status) in United States. How to remove the conditions and receive a permanent U.S. Green Card?Q: I got my Green Card based on my marriage to a U.S. Citizen. How long does it take to get U.S. Citizenship after the Green Card?
A: If you are a U.S. citizen or Green Card holder, if you have been married less than two years when your alien spouse is granted U.S. permanent resident status, the alien spouse will receive U.S. permanent resident status on a conditional basis.
To remove the conditions on you spouse's residence status in United States, you and your spouse should apply together using USCIS Form I-751, Petition to Remove the Conditions of Residence. You must apply to remove conditional status within the 90-day period before the expiration date on the conditional resident card. If you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal from the United States.
If your alien spuse has a child in previous marriage and if you are petitioning for a step-child and have not been married to the child’s genetic parent genetic or legal gestational mother for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident status also.
Therefore Form I-751 can also be used to remove the conditional basis of permanent residence for the child. If your spouse and child became conditional permanent resident at the same time or within 6 months, the child can be included in your spouse’s petition. If the child became a permanent resident more than 6 months after your spouse, the child will need to file a separate Form I-751.
A: Most U.S. Permanent Residents have to wait 5 years after receiving Green Card to qualify for U.S. Citizenship. However, the immigration law gives a break to spouses of U.S. Citizens.
If you are a U.S. permanent or conditional resident, you cannot apply for U.S. citizenship until you have lived in U.S. as a lawful permanent resident for at least five years. That means exactly five years to the day. You can check your U.S. permanent resident card for the exact date on which you became a permanent resident.
If you start out as a conditional resident rather than a permanent resident, because you got your residence through your marriage to a U.S. citizen, your two years as a conditional resident count as permanent residence.
If you have been married for at least 3 years, and your spouse has been a U.S. Citizen for at least 3 years, you are eligible for citizenship 3 years after you become U.S. Permanent Resident. Actually, you are allowed to apply for naturalization 3 months before the end of your 3 year residence.
The U.S. citizenship application must be submitted by mail, using USCIS Form N-400. USCIS will take a long time to process the N-400, to arrange for you to be fingerprinted, and to call you in for the interview at which it actually reviews your application, tests you on your knowledge of English and U.S. government, and makes a decision on whether to approve or deny you. USCIS may take at least 90 days to call you in for your interview.
Q: I have married with my U.S. citizen husband for more than 2 years inside the U.S. Now USCIS local office will interview us for my permanent Green Card application for the "real marriage". What find of documents I should prepare for the interview.
A: An alien spouse must prove that your marriage is real, not a sham just to get a Green Card. Collect and photocopy as many of the following items as possible. Do not send originals to USCIS. You should prepare the wedding invitations, church certificates, or other reliable documents that show the required relationship including:
* Joint bank accounts;
* Joint credit card statements;
* Joint club memberships;
* Joint federal and state tax returns;
* Copies of actual credit cards, health insurance cards, or other "joint" cards that you have together, showing same account number;
* Photographs of you and your spouse taken before and during your marriage, wedding photographs preferably those that include parents and other relatives from both families.
Q: To file Form I-130 for relative outside U.S., what kind of fees can be expected?
A: Immigration application related fees are charged for different services, such as fees for Department of State government services, fees for Visa Services, and fees for U.S. Citizenship and Immigration Services (USCIS):
- Filing an immigrant Petition for Alien Relative, Form I-130, this fee is charged by USCIS;
- Processing an immigrant visa application, Form DS-260;
- Medical examination and required vaccinations - costs vary.
Also, Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. There is no fee when filed with USCIS or abroad with the Department of State (DOS). DOS does charge a fee when this form is filed in the U.S.
- Other costs may include: translations; photocopying charges; fees for obtaining the documents you need for the immigrant visa application (such as passport, police certificates, birth certificates, etc.); and travel expenses to go to the embassy or consulate for the interview. Costs vary from country to country and case to case.
Q: For USCIS Form I-864 Affidavit of Support, what are the differences between sponsor, joint sponsor, and substitute sponsor?
A: An affidavit of support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. The person who signs the affidavit of support becomes the sponsor of the relative coming to live in U.S. The sponsor is usually the petitioner of an immigrant petition for a family member. An affidavit of support is legally enforceable; the sponsor's responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work - usually 10 years.
A joint sponsor is someone who is willing to accept legal responsibility for supporting the family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor, or the joint sponsor and his or her household, must reach the 125% income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.
If the visa petitioner has died after approval of the visa petition but U.S. Citizenship and Immigration Services (USCIS) decides to let the petition continue, a substitute sponsor must file a Form I-864 in place of the deceased visa petitioner.
Some other eligibility requirements apply to the substitute sponsor as well. He or she must be a U.S. citizen or a lawful permanent resident of at least 18 years of age who has a domicile in the U.S. And the sponsor must be a relative of yours. In order to be a substitute sponsor, you must be related to the intending immigrant in one of the following ways: Spouse; Parent; Mother-in-law; Father-in-law; Sibling; Child (if at least 18 years of age); Son; Daughter; Son-in-law; Daughter-in-law; Sister-in-law; Brother-in-law; Grandparent; Grandchild; Legal guardian of the beneficiary.
Serving as a substitute sponsor is a primarily financial relationship, and it involves filling out an Affidavit of Support on USCIS Form I-864. The Affidavit must indicate that the new sponsor is able to support the immigrants and his/her own household, at a level that is at or above 125% of the federal Poverty Guidelines. In fact, by filing Form I-864, the substitute sponsor promises the U.S. government to pay back any need-based public assistance that the named immigrants receive for approximately the first ten years of their having a green card.
Q: I am in a conditional permanent resident status after married a U.S. citizen husband. Now with the troubled marriage, I am in a procedure of divorce, and the divorce process will be finalized within 3 months. Can I remove the conditions on my residency without my husband to sign the form?
A: The conditional permanent resident status is given to individuals who receive U.S. permanent residence (Green Card) status via a recent marriage to a U.S. citizen. If a marriage has been less than two years in duration at the time U.S. permanent residence is granted, the status of the foreign national spouse then is "conditional." USCIS Form I-751 is used to remove the conditions on residency.
The condition is that it expires within two years, unless the Form I-751 is filed at the appropriate time, to request that the conditions be removed. If the Form I-751 application is approved, the foreign national spouse becomes a U.S. permanent resident without any conditions. The conditional status is an anti-fraud measure, and is necessary to provide updated proof of a real marriage in support of the I-751 form.
- This form can be filed jointly, with both husband and wife signing the form;
- Alternatively, it is possible to request a waiver of the joint filing requirement, if the marriage was entered into in good faith, but was subsequently terminated;
- It is also possible to obtain a waiver of the joint filing requirement, if the marriage was entered into in good faith, but there was abuse;
Q: I married to a U.S. citizen husband, and now I am in a difficult situation of failing marriage. We are in the process of divorce, can we still file USCIS Form I-751 filings jointly?
- It is also possible to request a waiver of the joint filing requirement, if removal of the foreign national spouse would result in extreme hardship.
A: USCIS Form I-751 can be filed by a couple jointly, even it they are legally separated or in the process of divorce. But USCIS will review these Form I-751 applications carefully, because there is a potential indication that the marriage may not have been real at its beginning.
In these I-751 application cases, the USCIS may issue a Request For Evidence (RFE) asking for response in certain time. This RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the alien applicant to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751.
If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of real marriage. The I-751 application case may be forwarded to a USCIS field office for an in-person interview to determine if the marriage was real at the time when the couples entered into the marriage. It is often the case that a marriage is genuine at the outset, but ultimately does not survive.
Q: The Two-Year Rule of Immigration Status for Widowsor Widowsers of U.S. Citizen
A: The widow or widowers often find themselves facing not only the loss of a loved one - U.S. citizen, but an absence of immigration options and the risk of removal or deportation from the United States. This has resulted in various legal challenges and proposed legislation.
There can be serious immigration problems faced by surviving foreign national spouses of U.S. citizens, if the U.S. citizen dies before the marriage has lasted at least two years. The issue surrounds options available to the widow or widower of a U.S. citizen, if his or her marriage was not marked by at least a second anniversary at the time of the U.S. citizen's death. But these problems do not exist for foreign national spouses who have been granted permanent residence.
If the marriage has endured for at least two years, there is an option for the widow or widower to self-petition for immigration relief. Additionally, there is an option if the marriage was less than two years in duration, but a Petition for Alien Relative (Form I-130) should be approved before the death.
The general rule is that an I-130 petition is automatically revoked if the petitioning relative dies. There is an exception that can be granted on humanitarian grounds if the I-130 petition was approved before the death.
Q: My U.S. citizen husband died recently, what happens for the pending Form I-130 which was filed by my husband before?
A: If a widow remained in the U.S. after the U.S. citizen husband and petitioner died, while awaiting the result of Form I-130 petition, widow will not be deemed as unlawful presence with the U.S. immigration policy.
This policy applies only to widow or widower who had a Form I-130 petition pending at the USCIS. If the U.S. citizen spouse never filed a Form I-130 for the alien spouse, the widow or widower may file a Form I-360 within the applicable filing period.
In the past, an immigration petition could not be approved if the petitioner died while the petition remained pending. U.S. Congress had addressed this scenario with a new statutory provision, INA 204. This provision gave foreign nationals the ability to seek an immigration benefit through a deceased qualifying relative in certain circumstances. An USCIS officer may approve an immigration petition if:
* The applicant resided in the United States when the qualifying relative died;
* The applicant continues to reside in the United States on the date of the decision on the pending application; and
* The applicant is at least one of the following:
1) A beneficiary of a pending or approved immediate relative immigrant visa petition;
2) A beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and any derivative beneficiaries;
3) Any derivative beneficiary of a pending or approved employment-based immigrant visa petition;
4) The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730);
5) A foreign national admitted as a derivative T or U nonimmigrant; or
6) A derivative asylee.
Q: I recently marrided with a U.S. citizen husband. What are the procedures for me to get U.S. Green Card?
A: For those persons without permanent residency in the U.S., A marriage with U.S. citizen also presents an opportunity to obtain U.S. permanent residency. Because concerns that some persons married to United States citizens merely to obtain U.S. permanent residence status, a two-step procedure under the Immigration Marriage Fraud Amendments (IMFA) was set up to ensure such immigration status was given to those only in marriages that are bona-fide, and not entered into simply for immigration purposes.
In the step one, if a person is petitioned by the U.S. citizen spouse within 2 years after married, the alien spouse is given only conditional permanent residence. Such conditional permanent residence status lasts for 2 years from the date on which it is granted.
In the step two, the alien spouse needs to remove the conditional permanent residence status. Removal of the conditional status is initiated by filing Form I-751 Joint Petition to Remove Condition to Permanent Residence. The joint petition provides an opportunity for USCIS to inquire as to the legitimacy of the marriage after conditional permanent residence is granted.
Therefore, documentation evidencing that the marriage was entered into for bona-fide reasons should be submitted as part of the joint petition. It must be filed with the USCIS service center in the 90 days immediately prior to the second anniversary of the granting of conditional permanent residence.
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