Tcl - Family-based Immigration: Answers to Frequently Asked Questions - October 2006 - Immigration Law - a Primer
| Publication year | 2006 |
| Pages | 47 |
| Citation | Vol. 35 No. 10 Pg. 47 |
2006, October, Pg. 47. TCL - Family-Based Immigration: Answers to Frequently Asked Questions - October 2006 - Immigration Law - A Primer
October 2006
Vol. 35, No. 10 [Page 47]
Amber J. Tafoya is a family immigration attorney practicing as the supervising attorney at the Center for Immigrant and Community Integration Legal Services at Catholic Charities of Pueblo - (719) 544-2915, ambertafoya@comcast.net. She has taught numerous CLE classes on immigration, and frequently trains domestic violence advocates and members of law enforcement regarding immigration law issues.
This article briefly outlines areas where family immigration law and a general law practice might intersect. It discusses such topics as U.S. citizenship, lawful permanent residency, conditional residency, self-petitions, qualifying family relationships to immigrate, loss of the family relationship, and affidavits of support.
There are many ways an individual can become a legal resident of the United States. One way is for the individual to become a "lawful permanent resident" ("LPR") by acquiring an immigrant visa. This article focuses on how an intending immigrant can acquire an immigrant visa through his or her family relationships. Topics discussed include U.S. citizenship, lawful permanent residency, conditional residency, self-petitions, qualifying family relationships to immigrate, loss of the family relationship, and affidavits of support.
The article provides answers to questions often posed by lawyers who do not regularly practice immigration law but who see family immigration issues in their practices. It also attempts to dispel some common misperceptions regarding family-based immigration law. It is not a "nuts and bolts" article, and therefore will not directly address the process of immigrating to the United States or specifics such as potential grounds of inadmissibility. Because of the complexity of immigration law, a consultation or co-counseling with an attorney who specializes in immigration law is advisable.
1. How does an individual become a U.S. citizen?
There are three ways to become a U.S. citizen. First, citizenship can be acquired by birth in the United States. According to the Fourteenth Amendment, "all persons born in and subject to the jurisdiction" of the United States are citizens.1 Second, citizenship can be passed on from U.S. citizen parents to their children born abroad. Whether a person abroad is a citizen at birth, where one or both parents are U.S. citizens, is a complex question controlled by statute.(fn2) Third, a person can become a citizen through the process of naturalization.(fn3)
2. How does one qualify for naturalization?
To qualify for naturalization, a person must attain lawful permanent residency status, unless he or she has served in the military during a time of armed conflict.(fn4) The applicant must be at least 18 years old(fn5) and have resided continuously in the United States for five years after becoming an LPR.(fn6)
An LPR who received his or her status through marriage to a U.S. citizen and has "lived in marital union" with that spouse for the three years immediately preceding the filing of the application also qualifies. A spouse or child who received LPR status under the Violence Against Women Act,(fn7) as a result of battery or extreme cruelty, also may apply for naturalization after three years, but without being in a state of "marital union."(fn8) The process of naturalization is achieved through an application process; it does not vest automatically.
3. How does an individual attain lawful permanent residency?
Lawful permanent residency gives a person authorization to live and work in the United States and travel in and out of the country with very few restrictions.(fn9) LPRs are not U.S. citizens. They are subject to all of the provisions of immigration law, including deportation and refusal of admission upon reentry to the United States.
To obtain LPR status, the immigrant must have a "qualifying family relationship." This means he or she must have a family member who is either (1) a U.S. citizen, or (2) an LPR of the United States. To establish that the qualifying family relationship exists, the intending immigrant's family member, or "petitioner," first must file a petition with the U.S. Citizenship and Immigration Services ("USCIS"), an agency within the Department of Homeland Security, on behalf of the intending immigrant, or "beneficiary."(fn10)
Beneficiaries
Beneficiaries must have a qualifying family relationship and, in most cases, a willing sponsor. They must meet strict quota controls on the number of persons who may be granted LPR status in any given year based on these family relationships.(fn11) They also must establish that they are individually admissible for lawful permanent residency based on health, criminal record, previous immigration record, likelihood to become a public charge, and other factors.(fn12) The burden of proof is on the beneficiary to show that he or she is admissible.(fn13)
If the beneficiary is not admissible, he or she may qualify for a waiver of the "admissibility" requirements in limited circumstances where there is a qualifying family relationship. For example, if an intending immigrant is inadmissible because he or she has committed a crime involving moral turpitude, the intending immigrant may be eligible for a waiver.(fn14) One waiver exists if the immigrant is the spouse, parent, son, or daughter of either a U.S. citizen or a lawful permanent resident, and can show that failure to obtain lawful permanent residency, and thus deportation, would be an extreme hardship on his or her relative.(fn15)
Immigrant Visas
Once determined admissible, the individual granted legal permanent residency is given an immigrant visa. The immigrant visa usually is processed abroad through the U.S. Department of State. However, certain aliens residing in the United States may be eligible to "adjust" status through USCIS from their previous status to LPR without leaving the country.(fn16) The key requirement to eligibility to adjust status is lawful entry into the United States.(fn17)
If the beneficiary's permission to be in the United States has expired and the beneficiary has overstayed his or her given time to be in the country lawfully for more than 180 days, leaving the United States will trigger a bar to re-entry, even if the beneficiary is leaving to attain a visa.(fn18) It is important to thoroughly analyze whether to apply in the United States or abroad, as there are risks and advantages to each. It is crucial to obtain the advice of a qualified immigration attorney before leaving and prior to applying for lawful permanent residency.
4. Which relationships constitute "qualifying family relationships"?
Only certain family relationships qualify to allow a family member to immigrate to the United States. The following categories are recognized under immigration law as conferring a benefit and a right to apply for an immigrant visa for lawful permanent residency or to adjust status to that of LPR.
Spouse: A spousal relationship is established by a marriage that is jurisdictionally valid, and not in violation of U.S. public policy.(fn19) Where states recognize common law marriage, those marriages are valid for purposes of immigration law.(fn20) Despite the fact that...
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