The immigration laws of the United States provide several ways for a person to legally immigrate to the US and obtain a permanent residence (or green card). The most common methods are through a family based petition, employment based petition or special immigrants (refugees and asylum recipients). This post will focus on how to obtain a green card through a family petition.
Family based visas are immigrant visas reserved for relatives of US citizens and lawful permanent residents. United States citizens and lawful permanent residents can help their qualifying relatives in petitioning for lawful permanent residency in the United States and eventually even citizenship. In order to be eligible to apply for a lawful permanent residence in the US, you must establish that:
- You are admissible.
- You can establish eligibility within one of the categories by establishing your relationship to a qualifying relative as either a spouse, child, sibling or parent.
You may be inadmissible if some factors are present, such as:
- Health-related grounds (communicable diseases that cause public health concerns or drug addiction).
- Crime-related issues (conviction of a crime involving moral turpitude, human trafficking offenses, money laundering offenses)
- Security concerns (espionage, sabotage, terrorist involvement).
- A person who is likely to be a public charge.
Once a person establishes that he/she is admissible, then you must establish your relationship with the petitioner. There are two main classes of relative petitions: immediate relatives and preference relatives.
Immediate Relatives are:
- Spouses or widows of US Citizens.
- Children (single, under 21) of US Citizens.
- Parents of US Citizens (if the US Citizen is 21 and over).
Preference Relatives have four categories:
- First (FB1): Unmarried sons and daughters (21 and over) of US Citizens.
- Second A (FB2A): Spouses and unmarried children (under 21) of Lawful Permanent Residents.
- Second B (FB2B): Unmarried sons and daughters (21 and over) of Lawful Permanent Residents.
- Third (FB3): Married sons and daughters of US Citizens.
- Fourth (FB4) – Brothers and sisters of US Citizens.
The advantage of being an immediate relative is obviously the speed in which one may obtain their green card. On the other hand, preference relatives must wait until their “priority date” is current before they can apply for an entry visa or before they can apply for adjustment of status in cases where they are already lawfully in the United States.
What happens to children and spouses of preference relatives?
The term for such relatives is “derivatives.” Only preference relatives may include spouses and children as derivatives. Generally, once the application is processed and a visa is available, the relative along with his/her derivatives will be awarded visas together. There are exceptions that may cause a derivative to be left out of the petition.
What are the requirements for a spouse?
In spousal petitions, the marriage must be legal, which means that all prior marriages must have been legally terminated and the marriage must have been legal in the place of marriage. There can be no fraud, which means that you can not marry just to get the immigration benefit. Applicants must prove that they have a bona fide marriage. Read this article to learn more about how to prove a bona fide marriage.
Widows may still apply:
Widows may self-petition for a green card if they were married for at least 2 years at the time the spouse died, were not legally separated at the time of death, and the petition is filed within 2 years of the death.
What happens after you get a green card?
Most Green Cards expire after 10 years and should be renewed within 6 months of this expiration date. Conditional residency cards are also issued, which last for 2 years. 90 days before these conditional cards expire, the holder must file a petition to have the conditions of residency removed. If the petition is approved, a Permanent Resident Card is issued and is valid for the standard 10-year period.
I strongly encourage my clients to become US citizens as soon as they are eligible after obtaining their green cards. Depending on how the green card was obtained, a person may become a US citizen within 3 or 5 years of receiving their green cards, provided that they satisfy all other requirements.
Can a DACA recipient obtain a green card?
DACA recipients are given temporary and discretionary relief from deportation, but this relief does not provide a path to citizenship or permanent residency. Because of this limitation, DACA recipients should absolutely file a petition for a Green Card if they are eligible.
If you feel you qualify for a family based petition or are unsure whether you qualify for one or not, give us a call today to schedule a consultation and go over your case. Immigration law is complex and constantly changing so it is best to put your case in the hands of a competent attorney. Let us be that helping hand to bring you peace of mind.
DISCLAIMER: The purpose of this article is for educational use only. The information contained in it does not constitute legal advice and an attorney-client relationship is not created by reading this post.
The question my clients have been asking over and over for the past few weeks is this: I am out of status or entered without inspection, what do I do now?
When a US citizen or a lawful permanent resident (commonly referred as a “green card” holder) petitions to bring his/her spouse to the United States, the petitioner must prove that the couple has a bona fide marriage. A bona fide marriage is nothing more that proving the marriage between the couple is legitimate and not entered for the purpose of obtaining immigration benefits.
