Chapter 7 Getting a Green Card Through Family Members in the U.s.

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 7 Getting a Green Card Through Family Members in the U.S.

A. Are You Eligible for a Green Card Through a Relative?

1. Immediate Relatives
2. Adopting a Foreign-Born Child
3. Preference Relatives
4. Bringing Your Spouse and Children
5. Marriage to a U.S. Citizen

B. Quick View of the Application Process

C. Step One: Your U.S. Relative Files the I-130 Visa Petition

1. Submitting the I-130 Petition
2. Awaiting USCIS Approval of the Visa Petition

D. Step Two: Preference Relatives Wait for an Available Visa

E. Step Three: You Submit the Visa or Green Card Application

1. What Happens When Adjusting Status in the U.S
2. Paperwork to Prepare for Adjustment of Status Application
3. What Happens During Consular Processing
4. Forms and Documents to Prepare for Consular Processing
5. Your Consular Interview

F. Step Four: Immigrant Visa Holders Enter the U.S

G. Removing Conditional Residence in Marriage Cases

1. Filing a Joint I-751 Petition With Your Spouse
2. Getting a Waiver of the Requirement to File a Joint Petition

If you have close family members in the United States, they might, if they are willing, be able to help you immigrate. It depends first on what relation they are to you—the closer the relation, the more rights you have under U.S. immigration law. It also depends on whether your relatives are U.S. citizens or lawful permanent residents (green card holders). U.S. citizens can bring more distant relatives than green card holders can—their parents and brothers and sisters, for example. Also, U.S. citizens' relatives are allowed, in many cases, to immigrate faster than lawful permanent residents' relatives are. This chapter will explain who is eligible for a green card through their family members and how to apply for it.

SEE AN EXPERT

Do you need a lawyer? Many people are able to handle the application process for a family-based visa on their own, without a lawyer. However, if you have any trouble dealing with paperwork or understanding the instructions, or have any complications in your case (such as a criminal record, including that of the U.S. petitioner, particularly if that person has committed offenses against a minor; past visa overstays in the U.S.; an abusive spouse upon whom you are relying to help you immigrate; or an immigrating child who will turn 21 soon), a lawyer is well worth the price. See Chapter 6 for tips on finding a good one.

Key Features of Family-Based Green Cards

Here are some of the advantages and disadvantages of permanent residence obtained through U.S. family members:

• Unlike with many other green cards, your educational background or work experience is not central to your eligibility (though it might come into play in the public charge analysis).
• Your spouse and unmarried children under the age of 21 are in many cases also eligible for green cards, as derivative, accompanying relatives.
• As with all green cards, yours can be taken away if you misuse it—for example, if you live outside the U.S. for too long, commit a crime, or even fail to advise the U.S. immigration authorities of your change of address.
• If you successfully keep your green card for five years (or three years if you're married to and still living with a U.S. citizen), you can apply for U.S. citizenship.

A. Are You Eligible for a Green Card Through a Relative?

You may qualify for a green card through relatives if you fall into one of the following categories:

• immediate relative of a U.S. citizen
• preference relative of a U.S. citizen or green card holder, or
• accompanying relative of someone in a preference category.

1. Immediate Relatives

These people qualify as immediate relatives:

• spouses of U.S. citizens. This includes widows and widowers of U.S. citizens if they had already started the application process at that time, or if not, if they start the application process within two years of the U.S. citizen's death.
• unmarried children of a U.S. citizen, under the age of 21, and
• parents of U.S. citizens, if the U.S. citizen child is age 21 or older. If the U.S. citizen child was abusing a parent, and then either died or lost citizenship status as a result of the abuse, the parent can file their own immigration petition on USCIS Form I-360. The abused parent must prove their good moral character, that they live or have lived with the U.S. citizen child, and that they've been battered or subjected to extreme cruelty by the child.

Same-Sex Couples Are Able to Obtain Green Cards Through Marriage

On June 26, 2013, the U.S. Supreme Court in U.S. v. Windsor struck down major portions of the federal Defense of Marriage Act (DOMA). This law once blocked individuals in same-sex marriages from receiving the federal benefits afforded to those in opposite-sex marriages, such as tax breaks and yes, immigration rights. Now, U.S. citizens and U.S. permanent residents can finally file a green card petition for their same-sex spouses.
The procedures for applying for immigration benefits for a same-sex spouse are exactly the same as described in this book. Just remember that the marriage must be legally recognized in either the state or the foreign country where it was performed. And marriage is the key word: Civil unions and domestic partnerships won't count for immigration purposes.
So if you're not legally married, you will need to marry in order to obtain a green card for the foreign spouse. That might seem impossible if the foreign spouse's country does not recognize same-sex marriage or if international travel to the U.S. or another country is difficult or expensive.
A good way to get around this is to use the K-1 fiancé visa to bring your partner to the U.S. for the purpose of getting married. (See Chapter 8 for information on fiancé visas.) Keep in mind that this option will work only for the partners of U.S. citizens. Fiancés of U.S. permanent residents are not eligible for K-1 visas.

Immediate relatives may immigrate to the U.S. in unlimited numbers. They are not controlled by any annual limit or quota.

Stepparents and stepchildren qualify as immediate relatives if the marriage creating the parent/child relationship took place before the child's 18th birthday.

Parents and children related through adoption may, in some cases, qualify as immediate relatives. (See Section 2, below, for information on adopting a foreign-born child. If an adopted U.S. citizen child wants to petition for foreign-born parents to immigrate, the requirements are similar to those described below, in that the adoption must have been finalized before the child's 16th birthday, the parent must have had legal custody of the child for two years before or after the adoption, and the child must have lived with the adoptive parent for two years before or after the adoption.)

2. Adopting a Foreign-Born Child

People hoping for green cards often ask their attorneys whether they could become eligible by having a U.S. citizen adopt them. Unfortunately, this rarely works—for one thing, anyone over the age of 16 is already too old for a green card through adoption. For another thing, adopted children who are not orphaned must (if they are not from a country that's party to the Hague Convention) live in the petitioning parents' legal custody for two years before applying for the green card, which is all but impossible unless the parents live outside the United States. A third complication is that the eligibility requirements and procedural steps are split into two. Which set applies to you depends completely on whether you are planning to adopt a child who is from a country that is party to the Hague Convention. The Convention, which became effective in 2008, set international standards for intercountry adoptions in order to give children greater protection from abduction, trafficking, and so forth. For the list of participating countries, go to https://travel.state.gov and click "Intercountry Adoption."

Orphan adoptions are a bit easier in cases where the child will not be coming from a Hague Convention country. (The procedures for adopting nonorphans and orphans from Hague Convention countries are identical.) This is the reason that many U.S. citizen parents seeking to adopt look to foreign orphanages.

As a practical matter, adopting parents usually use the help of adoption agencies in the U.S., which are better versed in the procedures than many attorneys. For this reason, this book will not discuss adoption procedures at length, beyond the following introduction to the basic rules.

Even with an agency, expect the process to take at least six to 12 months or longer due to backlogs created by the pandemic. Although we can't provide you with a list of reputable agencies, two California-based groups that local lawyers have had good experiences with are Adopt International, at 415-934-0300, www.adoptinter.org; and Adoption Connection, 415-359-2494, https://adoptionconnection.jfcs.org.

Be selective in choosing an adoption agency—look for one that's been doing adoptions for many years, successfully completes a comparatively large number per year, serves the countries in which you're interested, and is happy to show you evidence that it's licensed and comes with good references. The U.S. government also provides a centralized information source, the Child Welfare Information Gateway, at www.childwelfare.gov.

a. Orphan Eligibility From Non-Hague-Convention Countries

Orphan means a child whose natural parents are either deceased, have disappeared, or have permanently and legally deserted or abandoned the child. If only one parent is absent, the child is an orphan if the other parent hasn't remarried and is incapable of providing child care that meets the standard of living in their country.

Be careful: Some parents might put a child into an orphanage temporarily, without giving up all of their parental rights, in which case the child isn't eligible to immigrate. In the case of a birth to nonmarried parents, if the law of the...