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Family Based Immigration

Family-based immigration is the process of applying for permanent residency (a green card) through a spouse or other family member.  This process can be extremely complex, lengthy (sometimes lasting years), and frustrating.  Each applicant must be fingerprinted, submit photographs, and subject themselves to a thorough FBI clearance check. Additionally, an applicant must go to a certified physician for a medical examination and have a qualified financial sponsor.  Aretz & Chisholm Immigration specializes in helping immigrants apply for permanent residency through family members and will advise you of your best options, guide you through the complex process, and will ensure that all eligible immigrants gain their permanent residency status.

What Family Members Can I Apply For?

U.S. citizens may sponsor:

– Parents, if the U.S. citizen is over 21 (immediate relative);

– Spouse (immediate relative);

– Children (immediate relative if the child is unmarried and under the age of 21;
preference relative if the child is married or unmarried and over the age of 21);

– Brothers and Sisters (preference relative).

Lawful Permanent Residents may sponsor:

– Unmarried Children (preference relative)

– Spouse (preference relative)

** It is important to understand that neither citizens nor permanent residents can sponsor extended family members such as grandparents, aunts, uncles, or cousins.**

If I Apply for a Family Member, Can Their Immediate Family also Immigrate with Them?
The individual obtaining the immigrant visa is called the principal beneficiary.  Those individuals immigrating with the principal beneficiary are called derivative beneficiaries.  If the principal beneficiary is an immediate relative, then there are no derivative beneficiaries.  Each intending immigrant requires his or her own petition.  Preference category principals may immigrate their spouses and children as derivative beneficiaries on the same petition.

What Is A Priority Date?
The priority date is the date on which the immigrant visa petition (I-130) was accepted for processing by U.S. Citizenship & Immigration Service.  Immigrant visas are then issued in chronological order in each of the preference categories based on priority dates.

What is “Visa Retrogression”?
Due to the large number of applicants and the limited number of visas available each year, visa availability has become backlogged.  This is known as “visa retrogression.”  In many family-based preference categories, therefore, an applicant is not able to apply for their permanent residency at the same time as their immigrant petition, but must instead wait until their priority date becomes “current.”  Note: immediate relatives are exempted from these backlogs.

How Do I Determine if My Priority Date Is Current?
Every month the Department of State publishes the Visa Bulletin, which notes the availability of visas within each family-based category.  Refer to the Visa Bulletin to determine whether your priority date is current.  Those people whose priority date is current may apply for a visa, and in some circumstances, adjust their status in the U.S.  To see the current Visa Bulletin, visit: http://travel.state.gov/visa/bulletin/bulletin_1360.html

What Are My Options if I Want to Apply for My Spouse?
A spouse of a United States citizen may apply for permanent resident status (a green card) and obtain a work permit within the United States ONLY if:

  1. the spouse entered the U.S. legally, or
  2. the spouse had a petition filed on their behalf prior to April 30, 2001.

See the section on Adjustment of Status to learn more about this process.  If neither of these are the case, then the spouse must leave the United States to follow the process of Consular Processing.

What Specific Criteria Must a Marriage Meet to Be Considered Valid for Immigration Purposes?
The Department of Homeland Security reports that up to half of spousal immigration cases are fraudulent.  For that reason, immigration conducts a very strict review of marital relationships when applying for immigration benefits.  For the marriage to be recognized as valid by Immigration, each party must have been legally able to marry, and the marriage ceremony must be considered legal under the laws where it was performed.  In cases where one of the parties had previously been married, the divorce from the ex-spouse must be final and valid.  Common law marriages are valid for immigration purposes if the laws of the place of residence legally recognize common law marriage.  Customary marriages, those performed according to local custom but not licensed by civil authorities, may be valid if the law of the country where the marriage occurred recognizes the marriage as valid.  Same sex marriages, although they may be legal in the state or country in which the marriage was performed, are not recognized for immigration purposes.

What Are My Options If I Want to Apply for My Fiancé(e)?
If the couple is not yet married, a U.S. citizen may apply for a K-1 visa in order to bring his or her fiancée to the United States in order to get married. Once the couple is married, the immigrant relative can then apply for permanent resident status.  In order to obtain a fiancé(e) visa, the couple must prove:

– That they have met in person within the past two years (in some cases this requirement can be waived);

– They they have a good faith intention to marry; and

– That they are legally able and willing to marry within 90 days of the spouse’s arrival to the U.S.

It is important to plan carefully before filing any family-based paperwork with USCIS.  To learn more about your options, contact Aretz & Chisholm Immigration today for legal advice regarding your immigration case.  We are dedicated to helping you and your family have the best possible experience navigating the immigration process.

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