Family-based Immigration

Family-based immigration has been a cornerstone of the United States for centuries. It is a system that allows U.S. lawful permanent residents and citizens to sponsor their close relatives for admission to the country. The process can be complex, but it offers many benefits to the sponsoring family and the sponsored relative. We will explore family-based immigration in more detail, including the types of visas available and the steps involved in the sponsorship process.

Family Sponsorship (Adjustment and Consular Processing)

One way to immigrate to the United States is through family, which is a two-step process. First, the sponsoring family member must file the Form I-130 Petition and supporting documents with U.S. Citizenship & Immigration Services (USCIS). The second step is different depending on whether you are inside or outside the U.S. 

Applying for permanent resident status in the United States is called an Adjustment of Status, and is accomplished by filing the Form I-485 Application and supporting documents, including the Form I-864 Affidavit of Support signed by the sponsoring family memberWith an Adjustment of Status, you can stay in the U.S. while your application is processing with USCIS. 

If you are outside of the U.S., you use Consular Processing to become a permanent resident by obtaining an immigrant visa from the U.S. consulate abroad and then entering the United States on that immigrant visa. This is accomplished by filing the DS-260 Immigrant Visa Application online and filing supporting documents including the I-864 Affidavit of Support with the Department of State’s National Visa Center.

Work Authorization and Travel Authorization While Family-Based Adjustment is Pending

If you have an I-485 application for adjustment of status pending, you also qualify to apply for a work permit (Form I-765 Application for Employment Authorization) and a travel document called “advance parole” (Form I-131 Application for Travel Document) so that you can work and travel while you wait for a decision on your green card. However, in many cases, it is not advisable to travel outside the United States, and you should always seek legal advice about the risks of travel while your case is pending.

Removal of Conditions (I-751) for Marriage-Based Immigrants

Removal of Conditions applies to marriage-based immigrants (and their children) who entered the U.S. on an immigrant visa or adjusted status and were married to their U.S. citizen spouse for less than two years at the time they became a permanent resident. 

Such noncitizen spouses (and their children) are granted conditional permanent resident status upon entering the U.S. or adjusting status. Removal of conditions is the process where the USCIS gives the non-American spouse full permanent resident status by “removing the conditions” on their status and issuing them a 10-year green card. The married couple must file the Form I-751 Petition to Remove Conditions jointly, provide sufficient documentary evidence to prove the bona fides (good faith) of their marriage, and in most cases, appear together for an interview with an immigration officer.

The requirement that the married couple file the I-751 Petition jointly can be waived in certain circumstances, such as divorce. In cases of divorce, it is even more important to prove the bona fides of the marriage.

K-1 Fiancé Visas and Adjustment

The K-1 visa, commonly referred to as the fiancé visa, permits the betrothed partner of a United States citizen to come to America on the premise that they marry within ninety days. The recently married spouse can apply for adjustment to lawful permanent residence (green card) based on their marriage.

The first step toward a K-1 visa for the fiancé of a U.S. citizen is by filing Form I-129F Petition for Alien Fiancé(e) and supporting documents. Once approved, the non-American fiancé(e) applies for the K-1 visa with the U.S. Department of State through the U.S. Embassy or Consulate in their home country. 

Unlawful Presence Bars to Re-entry and I-601A Unlawful Presence Waiver

If you entered the country without inspection and are pursuing family-based immigration, in most cases you will need to consular process. Even if you entered on a visa, if you are not applying as an immediate relative (spouse, children and parents of U.S. citizens) and have overstayed your status, in most cases you will need to consular process as well.

However, once you leave the country, you may be subject to the unlawful presence bars to re-entry if you were in the U.S. without status for 6 months or more (3-year bar) or 1 year or more (10-year bar).

If you are seeking family-based permanent residence, but are required to consular process and are subject to an unlawful presence bar, you may qualify for the Provisional Unlawful Presence Waiver, filed with Form I-601A Application for Provisional Unlawful Presence Waiver and supporting documents. The waiver adds an additional step and additional time to the two-step process described above for family-based consular processing, but it allows you to remain in the U.S. while your waiver is pending.

In order to qualify for the I-601A waiver, you must prove extreme hardship to a qualifying relative if you are not allowed to return to the United States. The qualifying relative can only be a U.S. citizen or LPR spouse or parent. 

Waivers for Other Grounds of Inadmissibility & Deportability (Misrepresentation, Criminal History, etc.)

There are specific factors, such as criminal history, that may cause you to be unable to enter the U.S., apply for a green card, or return to the United States after leaving. Some factors may even put you in danger of deportation. These are known as grounds of inadmissibility and deportability, and they are listed in the Immigration and Nationality Act (INA). In some cases, even if you are considered inadmissible, you may be eligible for a waiver.

Widow(er) Petitions

The widow(er) petition (Form I-360 Petition) is for people who want to become permanent residents after losing their U.S. citizen spouse. If you are the widow or widower of a U.S. citizen and were married to the citizen at the time of their death, you may self-petition on Form I-360, even if your spouse did not petition for you previously. To qualify as the spouse of a deceased citizen, you must show that your marriage was legal and entered into in good faith, a.k.a. bona fide.

Military Parole in Place

Parole in place is a type of humanitarian parole given to individuals who are already inside the United States, but who entered without inspection. It is given on rare occasions and only when there is an urgent humanitarian need or significant public benefit. Close family members of active-duty members of the U.S. military and honorably discharged veterans may be eligible for this benefit.

Montavon McKillip Law is a full-service immigration law firm in Vista, San Diego County, California (North County). Andrea Montavon-McKillip provides legal assistance to individuals and families seeking to become United States citizens. She has been practicing for more than 20 years and has experience helping people from all walks of life navigate the complex U.S. immigration system. If you need help with family-based immigration, please do not hesitate to contact Andrea for a consultation.