1. The Family-Sponsored Immigration
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.
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.
2. The Immediate Relatives of a U.S. Citizen
Every year, thousands of foreign-born people become engaged or married to U.S. citizens. The immigration process for Green Card through marriage varies based on whether a foreign national intends to marry the U.S. citizen in the U.S. or outside the U.S. Each of these situations will require slightly different planning and procedures.
The immediate relatives of a U.S. citizen refers to parents, spouses and children (who are unmarried and under 21 years of age) of a U.S. citizen. Immediate relatives of a U.S. citizen can immigrate to the United States without being subject to any numerical restrictions. This means there is no visa quota allowed under the immediate relative category, unlike other close family members of U.S. citizens or permanent residents. The immediate relatives of a U.S. citizen can apply for U.S. permanent resident status without any waiting time. 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)
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.
3. The Definition of Marriage and Spouse in U.S. Immigration law
Marriage is a subject matter of the laws of the state or country where the marriage was entered into. Federal laws usually recognize the validity of a marriage if the marriage was valid in a state or another country where the marriage was entered into.
However, according to The Defense of Marriage Act, U.S. Congress clarifies that the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or wife. Apparently, U.S. Congress interprets that marriage exists only between male and female.
A spouse is a legally wedded husband or wife. Merely living together does not qualify a marriage for immigration. Immigration laws stated that a person does not qualify as a spouse, husband, or wife for immigration purposes if the marital relationship was created by a marriage ceremony, where the parties were not physically present in the presence of each other, such as a proxy marriage, unless the marriage has thereafter been consummated.
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.
4. Obtaining Green Card through Marriage to a U.S. Citizen
A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. If a foreign spouse wants to become a lawful permanent resident based on the fact that he or she married a citizen of the United States, the USCIS will approve an immigrant visa petition, Form I-130 - Petition for Alien Relative. This petition is filed by the U.S. citizen spouse and must be accompanied by proof of the marriage relationship.
When a foreign national marries a U.S. citizen, he or she is considered as an immediate relative of the U.S. citizen. The foreign spouse in the U.S. can file an immigrant application for permanent residence simultaneously with USCIS once the marriage has taken place. The applicant will be required to demonstrate to USCIS that the marriage was entered into good faith and not solely for the purpose of securing immigration benefits for the foreign national.
A green card or permanent residence application is available to any non-citizen spouse who has married a citizen of the United States. Spouses of U.S. citizens are afforded more rights than other applicants for green cards, and can normally obtain a green card more rapidly than other immigrant applicants. These applications can be processed more rapidly than most other cases.
If a U.S. citizen marries an alien abroad, an I-130 petition must be filed after the marriage to begin the immigration process for the alien spouse (husband or wife). This can be filed with the U.S. Citizenship and Immigration Services in the United States.
5. The Children's Green Card Eligibility in Marriage-Based Immigration Process
If you are applying for U.S. Green Card (lawful permanent residence) based on marriage to a U.S. citizen or a U.S. permanent resident, your foreign-born child may be eligible to obtain green card along with you. This is true whether or not the foreign-born child is the biological children of your petitioning spouse.
But the foreign-born child would not get Green Card automatically. The child will have to go through the same or a very similar immigration application process as you do. The child will have to prove that he or she is not inadmissible, and that the child will be financially supported along with you.
If your child are unmarried and under age 21, he or she will be placed in the same immigrant category of applicant as you. The result will be that the child can get a visa or green card at the same time as you do.
If your child is married or over age 21, they may or may not be able to get an immigrant visa, and any visa they might get will take years longer than yours to obtain. The eligibility will depend in part on whether your spouse is a U.S. citizen or a permanent resident.
6. The Processing Time and Steps during the Family-Based Green Card Application
If you are planning on acting as a green card sponsor for a family member, various factors can stretch the process into months, depending on how long it takes you to gather documents and prepare the appropriate paperwork; who you plan to sponsor; whether there is a limit on immigrant visa numbers given out in that category; and how backlogged the various USCIS offices that you will deal with are at the time.
First, you will need to fill out USCIS Form I-130, and attach your U.S. citizenship or Green Card evidence, as well as proof of your relationship to your family member. USCIS' process for the petition can take several months. Usually later, you will need to prepare an Affidavit of Support on Form I-864, together with documents proving that you are able and willing to support the immigrant at an amount that is at least 125% of the U.S. Poverty Guidelines.
In addition, your family member will need to prepare various documents as his or her own application for a green card. The exact forms and process depend on whether your relative will be adjusting status in the U.S. or going through consular processing from another country. Your relative will also need to undergo a medical exam, and get the doctor's report to submit with the green card application. At every step of the way, you will be dealing with a government agency that is backlogged with other applicants. The typical processing steps you may encounter include:
- waiting a receipt notice after submitting Form I-130;
- if your relative will be coming from abroad and going to consular processing, awaiting transfer of the case to a U.S. consulate and correspondence from the National Visa Center;
- if your relative is in the U.S. and will be adjusting status inside U.S, awaiting a receipt notice and then a fingerprinting appointment waiting for the FBI to process your relative's fingerprints;
- waiting an interview with the U.S. consulate or USCIS office.
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