Attorney Robert Pascal on US Family Immigration

II. Family Immigration

Attorney Robert Pascal on US Family Immigration

Family Reunification is a key principle underlying US immigration policy. This principle allows US citizens and Lawful Permanent Residents to apply for their family members to come and live legally in the United States. It is embodied in the Immigration and Nationality Act (INA), which specifies numerical limits for five family based admission categories, as well as a per country limit on total family based admissions.

The family based immigration category allows US citizens and Legal Permanent Residents (LPRs) to bring certain family members to the United States. Family based immigrants are either admitted as immediate relatives of US citizens or through the family preference system.

            A. What is an “Immediate Relative”?

            Section 203 of the INA defines an “Immediate Relative” as the following:

            1. The spouse of a US citizen (same-sex couples included); or

            2. The unmarried child of a US citizen (under 21 years of age); or

            3. The parent of a US citizen (if that child is 21 years or older). 

The significance of being defined as an immediate relative is there are no numerical restrictions on the number of immigrant Visas issued in this category. Essentially, there is no waiting period for a Visa to become available, but normal USCIS and NVC application processing times are still applicable.

           

If you are the spouse or child of a US citizen’s immediate relative, you must independently qualify for a Green Card and file your own application. You cannot qualify for a Green Card as the derivative Beneficiary based on the immediate relative’s application.

            B. Family Preference Petitions

While only US citizens can file immediate relative petitions, family preference petitions are available for both US citizens and Lawful Permanent Residents (LPRs).

                                                           

These family preference petitions are subject to annual numerical limitations based on the region and specific country, and are as follows:

            US Citizens

            1. Unmarried sons and daughters who are more than 21 years of age;

            2. Their married children of any age; and/or

            3. Their brothers and sisters (if the US citizen is more than 21 years of age).

            Legal Permanent Residents (LPRs)

            1. Their spouse; and/or

            2. Their unmarried children (of any age).

An important point of understanding is that the approved family preference petition does not result in the automatic or immediate issuance of a Visa or Green Card to the family member. The family petition is assigned a priority date as of the date of the initial filing with the USCIS, and is then held at the National Visa Center until the priority date is reached. Essentially, the family member gets in line and waits until their Visa number is called for processing. This wait could take anywhere from one year to twelve years based on the assigned preference category. In 2014, there were as many as 4.2 million family members waiting in the Visa line for their number to be called.  

            C. What are the annual numerical limits for Family Preference Visas?

            Immediate Relatives:

CATEGORY	US SPONSOR	RELATIONSHIP	NUMERICAL LIMIT
Immediate Relatives	US citizen	Spouses, unmarried minor children, and parents	Unlimited

            Family Preference Allocations:

CATEGORY	US SPONSOR	RELATIONSHIP	NUMERICAL LIMIT
1	US citizen	Unmarried adult children	23,400*
2A	LPR	Spouses and minor children	87,900
2B	LPR	Unmarried adult children	26,300
3	US citizen	Married adult children	23,400**
4	US citizen	Brothers and sisters	65,000***

                * Plus any unused Visas from fourth preference.

            ** Plus any unused Visas from first and second preference.

            *** Plus any unused Visas from all other family based preferences.

D. How can I determine the length of time my family member will have to wait for a Visa to become available? 

Every month the US Department of State publishes an updated Visa Bulletin on their website. This bulletin summarizes information collected from Consular Officers and the USCIS on the availability of immigrant numbers and applicants to adjust status. It specifies “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant Visa applicants should be notified to assemble and submit required documentation to the National Visa Center. To check on the latest Visa bulletin, go to https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

            E. How do I apply for my family member?

All petitions for family members must be filed with the USCIS in the United States, even for those Petitioners residing outside the US, unless there is a USCIS field office in the country where the US Petitioner is residing. There are approximately 24 offices worldwide. US Embassies and Consulates do not accept routine I-130 filings except in exceptional circumstances.

These field offices can be located at: https://www.uscis.gov/about-us/find-uscis-office/international-immigration-offices.

Whether the Petitioner is a US citizen or Legal Permanent Resident, both will use the same I-130 form. This is the primary form to petition for a family member. It is very important that you are residing in the United States, or have the intent and evidence to reestablish your domicile in the United States prior to the time the approved Beneficiary has been scheduled for an interview.  

In addition to the I-130, Biographic Information Forms must be completed and the required Civil Documentation must be provided (e.g. birth certificates, copies of passports, LPR cards, marriage certificates, etc.) that will evidence the familial relationship to the USCIS.

            Currently, the USCIS charges a filing fee of $535 per I-130 application.

Depending on where your relative resides in the United States, it will then be directed to the USCIS Service Center that oversees I-130 application forms for that specific state or US territory.

If you are a US citizen and your immediate relative was lawfully admitted to the United States, you may also be able to file an I-485 Application to Adjust Status to Permanent Residence at this time. 

F. Now that I have filed an I-130 for my family member, how is the process handled by the USCIS?

                        F1. Stage 1 - The Petition is Filed

                        I-130 (Stand alone - Beneficiary is outside the United States)

Once the USCIS receives the application, it enters the application into its computer database and assigns a receipt number. The USCIS will then issue an I-797 Notice of Action form that is mailed to the Petitioner within thirty days. Case processing has now begun on the petition.

Depending on the Service Center where the application is filed by the Petitioner, it could take anywhere from six to ten months until a decision is rendered.

A great resource for keeping up-to-date on the processing times is to visit the USCIS processing time information page at: https://egov.uscis.gov/cris/processTimesDisplayInit.do.          

Not only does this page offer processing times for the USCIS Service Centers, but also for Field Offices, the National Benefits Center (also known as MSC), Immigrant Investor Program Office (also known as EB-5), International Operations Offices, and Immigrant Visa Fees.

                        F2. Stage 2 - I-130 Petition Approved        

Once the USCIS has determined the I-130 has met all legal and filing requirements, they will then issue an I-797 Notice of Action approving the petition. At that stage, they will then advise the Petitioner that the file is being transferred to the National Visa Center. Usually it will take two to four weeks for the USCIS to complete this transfer.

                        F3. Stage 3 - Visa Petition Arrives at the NVC

Based in Portsmouth, NH, the National Visa Center (NVC) handles all approved immigrant Visas that require consular action. They also handle non-immigrant Visas such as K-1 (Fiancé) and K-3s. This is essentially the last stop before the file is forwarded to the designated consular post for the applicant interview.  

                                               

In the event there is no immediate Visa available, as in the instances of the five family preference Visa categories, the NVC will essentially hold onto to the applications until the priority date is reached and a Visa becomes available. As previously stated, this process can take months or even years. There is nothing the NVC can do to speed up the process.

If you are waiting for a Visa to become available, it is important to keep the NVC informed of any change of address, attorney, marital status of beneficiary, or the death of the Petitioner, as this could affect the status of the pending Visa application. The NVC prefers to be contacted by email at NVCINQUIRY@state.gov. There is also an automated telephone inquiry line at (603) 334-0700 with live assistance Monday through Friday from 7:30 a.m. to 12 Midnight (EST).

                        F4. Stage 4 - NVC Processing

If the beneficiary of an I-130 is an immediate relative, fiancé, or a family preference beneficiary lucky enough to have a Visa available, the NVC will assign a case number and send out a Notice to the Petitioner via email.

One of the initial Notices the NVC will send is the request to designate an Agent and address if you do not have an attorney or designated legal representative. In addition, a supplemental NVC notice will explain that two sets of fees will need to be paid to the NVC. These fees are as follows: $120 for the Affidavit of Support and $325 for the Immigrant Visa Application Support Fees. You will need to log on to the NVC website and pay these invoices from a personal bank account. Credit cards are not accepted. If you mail in the payment, this could delay the processing of the petition for an additional four weeks.     

After the fees are paid, the NVC will generate bar coded cover sheets for your submission of civil documents for the Immigrant Visa Application, along with the Affidavit of Support/I-864 and financial information.

                                    F4A. Civil Documentation

The types of required civil documentation to be submitted are stated on the US Department of State website. Also, all documents not written in English, or in the official language of the country in which you are applying for a Visa, must be accompanied by certified translations. The translation must include a statement signed by the translator stating that:

                                    1. The translation is accurate; and

                                    2. The translator is competent to translate.

Also, all Civil Documents must be issued by the appropriate authority in your country. Copies of these documents will be submitted to the NVC, and the original or certified copies will be presented at the embassy interview. 

                                    1. A Valid Passport

Each intending immigrant is required to have a valid passport. This passport should have at least six months or longer until expiration. A copy of the biographic page will be submitted to the NVC.

                                    2. Birth Certificate  

Each applicant will need to obtain an original birth certificate issued by the official custodian of birth records in the country of birth, showing the date and place of birth and the parentage of the applicant, based upon the original registration of birth.

Important Notice: You must submit a long form original birth certificate. Short form birth certificates will not be accepted.

                                    The certificate must contain the:

                                    A. Person's date of birth; and

                                    B. Person's place of birth; and

                                    C. Names of both parents; and,

D. Annotation by the appropriate authority indicating that it is an extract from the official records.

Unobtainable birth certificates*: Some birth records may not be obtainable if, for example:

                                    A. The applicant's birth was never officially recorded; or

                                    B. The applicant's birth records have been destroyed; or

                                    C. The appropriate government authority will not issue one.

*In these cases, please obtain a certified statement from the appropriate government authority stating the reason the applicant's birth record is not available. With the certified statement, the applicant must submit secondary evidence. For example:

A. A baptismal certificate that contains the date and place of birth, as well as both parent’s names (providing the baptism took place shortly after birth); or

                                    B. An adoption decree for an adopted child; or

C. An affidavit from a close relative, preferably the applicant's mother, stating the date and place of birth, both parent’s names, and the mother's maiden name. Note: An affidavit must be executed before an official authorized to take oaths or affirmations.

                                    3. Court and Prison Records     

Applicants who have been convicted of a crime must obtain a certified copy of each court record and any prison record, regardless of the fact that he or she may have subsequently benefited from an amnesty, pardon, or other act of clemency. Submit to the US Embassy or Consulate at your interview. Court records should include:

A. Complete information regarding the circumstance surrounding the crime of which the applicant was convicted; and

B. The disposition of the case, including sentence or other penalty or fine imposed.

                                    4. Deportation Documentation  

Applicants who have previously been deported or removed at government expense from the United States must obtain Form I-212, Permission to Reapply after Deportation, from the United States.

                                    5. Marriage Certificate

Married applicants must obtain an original marriage certificate, or a certified copy, bearing the appropriate seal or stamp of the issuing authority. 

Note: Marriage certificates from certain countries are unavailable. More specific information is available online on the US Department of State Reciprocity by Country webpage located at:  https://travel.state.gov/content/visas/en/fees/reciprocity-by-country.html.

                                    6. Marriage Termination Documents

Applicants who have been previously married must obtain evidence of the termination of EACH prior marriage. Evidence submitted to the US Embassy or Consulate must be in the form of original documents issued by a competent authority, or certified copies bearing the appropriate seal or stamp of the issuing authority, such as:

                                    A. Final divorce decree; or

                                    B. Death certificate; or

                                    C. Annulment papers.

                                                           

                                    7. Military Records

Persons who have served in the military forces of any country must obtain a copy of their military record. Submit documentation to the US Embassy or Consulate at your interview.

Note: Military records from certain countries are unavailable. More specific information is available online at the US Department of State Reciprocity by Country webpage.

                                    8. Police Certificate

Each applicant aged 16 years or older must submit all required police certificates to the US Embassy or Consulate at his or her interview.

                                    What does the applicant submit?

The applicant must submit police certificates that meet the following guidelines. The police certificate must:

                                    A. Cover the entire period of the applicant's residence in that area; and

                                    B. Be issued by the appropriate police authority; and

C. Include all arrests, the reason for the arrest(s), and the disposition of each case of which there is a record.

                                    9. Petitioner Documents

If you are applying for an IR-5 Visa as the parent of a US citizen or for an F4 Visa as the brother or sister of a US citizen, you must:

A. Obtain an original birth certificate for your Petitioner, or a certified copy; and

                                    B. Send a photocopy of your Petitioner's birth certificate to NVC; and

C. Bring the original Petitioner’s birth certificate plus a photocopy to your Visa interview at the US Embassy or Consulate.

If you are applying for an IR1, CR1, or F2A Visa as the spouse of a US citizen or Lawful Permanent Resident and your petitioning spouse was previously married, you must:

A. Obtain evidence of the termination of EVERY prior marriage your petitioning spouse has had (Note: This evidence must be an original or certified copy of one of the following documents: final legal divorce decree, death certificate, or annulment papers.); and

B. Send a photocopy of the Petitioner’s marriage termination document(s) to NVC; and

C. Bring the original Petitioner’s termination document(s) plus a photocopy to your Visa interview at the US Embassy or Consulate.

For country-specific guidelines on how to obtain acceptable birth certificates and marriage termination documents, use the Document Finder at: https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/Supporting_documents.html.

                                    10. Custody Documentation

                                    Included with any divorce or adoption decrees.

11. Check the Department of State Webpage Document Finder for your Country

Go to your country on the Document Finder site for any additional documentation that may be required by the US Embassy in your country: https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/Supporting_documents.html.

                                    F4B. Affidavit of Support

Aside from the Civil Documentation, there will be the required submission of an I-864 Affidavit of Support with supporting financial documentation.

The Affidavit of Support serves two purposes: first, it provides evidence to the US government that you have the adequate financial means to support your intending immigrant relative; and secondly, it creates a contract between the Sponsor and the US government stating that if the relative obtains governmental benefits (e.g. Welfare, Medicaid, food stamps), the US government can request reimbursement from the Sponsor. This requirement is in place until the Beneficiary has worked at least ten years, becomes a US citizen, renounces their US residency status, or dies.

                                    To qualify as either a Primary or Joint Sponsor, the individual must be:

                                    1. A US citizen, national or permanent resident; and

                                    2. Age 18 or older; and

3. Domiciled in the United States, including US territory or possession. (This requirement can be satisfied by proving the individual will establish a domicile on or before the date of the principal intending immigrant’s admission or adjustment of status.) 

Every Primary Petitioner that has filed an I-130, I-129F, I-140, or an I-600 is required to file an Affidavit of Support that meets the minimum income requirements set forth in the I-864P Poverty guidelines. The I-864P guidelines are promulgated from data received by the US Department of Health and Human Services each year.     

                                    The 2017 Poverty Guidelines for all states except Alaska & Hawaii:

HOUSEHOLD SIZE	125% OF HHS POVERTY GUIDELINES
2	$20,300
3	$25,525
4	$30,750
5	$35,975
6	$41,200
7	$46,425
8	$51,650

The Sponsor or Joint Sponsor will need to prove they have the current ability to pay by providing copies of current paychecks, year-to-date earnings statements, and letters of employment. In addition, they will also need to provide their most recent US tax return, along with their adjusted taxable income reported for two additional years prior.

Even if the Sponsor did not have sufficient income to satisfy the I-864 requirement, and will be using a Joint Sponsor, they are still required to file an Affidavit of Support. In addition, they must have filed US tax returns.

                                    Alternative to Insufficient Income

In the event a Sponsor does not have sufficient income to meet the threshold, there is the alternate use of “significant assets” to satisfy this requirement. These assets can be monies held in checking or saving accounts, stocks or bonds, and real estate holdings, and belong to the Sponsor, household members who have signed an I-864A, and the principal Sponsored Immigrant.

                                    For the assets to meet the “significant” threshold, their total value shall be:

A. 1X - the difference between the Sponsor’s household income and the minimum income requirement for an alien orphan;

B. 3X - the difference between the Sponsor’s household income and the minimum income requirement for the spouse or child of a US citizen.        

C. 5X - the difference between the Sponsor’s household income and the minimum income requirement for all other beneficiaries.

           

                                    F4C. Complete the DS-260

The final component to the NVC processing is completing the Department of State DS-260 Application for an Immigrant Visa. A link will be provided in the NVC notifications that will direct you to the website to complete this form online. It will take about two to three hours to complete and can be saved during the process so you can log back in to complete at your leisure. This form will request biographic information as well as a series of questions related to any prior criminal convictions, deportations from the United States, and a list of other possible acts or offenses that may disqualify the beneficiary from admission to the United States. It is paramount that all of these questions are answered truthfully. When the DS-260 is completed, it is electronically signed and the receipt is printed out and taken to the interview.

Once these items have been completed and submitted to the NVC, they will be reviewed for final approval. This process will usually take eight to twelve weeks and a notice will be emailed that the case processing is completed and that the interview will be scheduled.

                        F5. Stage 5 – The Embassy Interview     

The final stage of processing is the actual interview. The NVC will email the interview notice to the Petitioner, Beneficiary, and legal representative. It will usually provide six weeks notice as to the date and time. It is important to keep this interview date, as attempting to change it could result in a significant delay to reschedule.

                                    F5A. Pre-Interview

It is important to read the interview notice carefully as each US Embassy or Consulate may have special instructions unique to that particular country. For those persons with interviews scheduled in Rio de Janeiro, you will need to visit the following webpage: https://travel.state.gov/content/dam/visas/iv-dv-supplemental/RDJ%20-%20Rio%20de%20Janeiro.pdf

This webpage will prompt the Beneficiary to sign up for an online account with the US Department of State Visa Appointment Service so as to assist the Embassy or Consulate with interview scheduling and the return of the passport with the Visa following the interview.

Secondly, a mandatory medical examination will also be required. It is important that this examination is scheduled as soon as the interview notice is received. The above noted webpage provides a list of specially designated physicians that have been authorized to conduct medical examinations for the US Embassy or Consulate. Failure to use an unauthorized physician will result in delay or denial of the Visa. Examination costs are currently $180.00, plus additional expenses for any necessary vaccinations. The Beneficiary will be given a sealed envelope with the exam results to be taken to the interview. Do not open the sealed envelope.

Third, it is important to review the pre-interview checklist. It will provide a complete list of all documentation that will need to be presented at the interview. It is important to bring the original or certified copy of each document that has been submitted to the NVC and USCIS to the interview along with one copy. Also, if the petition is based upon a spousal relationship, also bring all evidence of the bona fide marriage (e.g. photos, legal documents, joint assets, joint liabilities, and notarized letters from friends and family members). 

                                    F5B. Interview Day

Arrive timely and dress appropriately. Business casual is sufficient. If everything goes well, your Visa will be approved and your passport returned to you within a week or two. If there is missing documentation, you will be issued a letter requesting that you submit the missing documentation to the consular officer. If there are other issues related to eligibility or admissibility, it may result in an immediate denial or be placed in administrative review that could take a minimum of 60 days.    

Assuming the Visa has been granted, you will also be given a sealed envelope containing documents that will be given to US immigration officials upon entry into the United States. Do not open this sealed envelope.

You should plan your travel to the United States before the expiration date of your Visa, which coincides with the date of expiration of the medical examination. The Visa cannot be extended and all fees are non-refundable. Also, all family members immigrating with the primary Beneficiary must also travel together.

                        F6. Stage 6 – Arrival in the United States

Upon arrival in the United States, the approved Beneficiary will present their Visa and the sealed envelope to the immigration officials. These officials will open the envelope, review the documentation, and then place a stamp into the passport indicating entry with permanent residence status and the category of admission. 

The approved Beneficiary will have the requirement of also paying an immigrant fee of $220.00 prior to arrival in the United States or after arrival in the United States to obtain the actual Green Card. Welcome to the United States of America!

            G. I-130 Filing for a Family Member in the United States

If the family member is in the United States and can immediately qualify for a Visa, such as the spouse, minor child, or parent of a US citizen, then an I-130 and I-485 Application to Register for Permanent Residence or Adjust Status can be filed simultaneously. The applications will be sent to the appropriate USCIS Service Center, and will then be forwarded to the local USCIS Office for interview scheduling.

All of the requirements for eligibility, including the I-864 Affidavit of Support, remain the same.