Citizens and Lawful Permanent Residents (“green card” holders) of the United States may petition for certain relatives to immigrate to the United States by filing Form I-130, Petition for Alien Relative.
U.S. Citizens may petition for the following beneficiaries:
- Immediate relatives:
- Children (unmarried and under 21 years old); and
- Parents (if the Petitioner is over 21).
- Other family members:
- Sons and daughters (married and/or older than 21); and
- Siblings (if the Petitioner is over 21)
Lawful Permanent Residents may petition for the following beneficiaries:
- Unmarried children under 21; and
- Unmarried son or daughter of any age.
For immediate relatives of U.S. citizens, visas are always available, which means that the Beneficiary does not need to wait for a visa. For all other relatives, preference categories determine how long the family member must wait for a visa to become available. Visas for these categories are subject to annual numerical limits.
An approved Form I-130 merely establishes that a qualifying family relationship exists; it does not grant any benefit to the beneficiary other than securing a priority date for visa processing. In order for the beneficiary to become a Lawful Permanent Resident, Form I-485, Application to Register Permanent Residence or Adjust Status, must also be approved. If the Beneficiary is in the U.S. legally, he or she may be able to file this application together with the I-130 Petition. Otherwise, a beneficiary of an approved immigrant petition who has an immigrant visa number immediately available may apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This path is referred to as “consular processing.”
A U.S. Citizen may also petition for a visa to bring his or her fiancé to the United States. Generally, to be eligible, the Petitioner must prove that he or she is a U.S. citizen, that he or she plans to marry the Beneficiary within ninety (90) days of the Beneficiary’s entry into the United States, that both Petitioner and Beneficiary are free to marry, and that they met each other in person at least once within the two (2) years preceding the filing of the petition.
If approved, the fiancé may enter the United States, and the couple must marry within ninety (90) days of the entry. After the marriage, the Beneficiary may apply for Lawful Permanent Resident status while remaining with the Petitioner in the United States.
Victims of Domestic Violence and Other Crimes
Under the Violence Against Women Act (VAWA), battered non-citizens who are married to or recently divorced from U.S. Citizens or Lawful Permanent Residents can self-petition (without the help or knowledge of their abusive spouse) to obtain Lawful Permanent Resident status or to remove the conditions on their initial Permanent Resident cards. Parents and children of abusive U.S. Citizens or Lawful Permanent Residents may also be eligible to apply.
The U visa was established to encourage victims to report crime and assist with law enforcement investigations and prosecution. Victims of certain crimes, such as torture, trafficking, rape, sexual assault, sexual exploitation, prostitution, domestic violence, involuntary servitude, slave trade, kidnapping, unlawful criminal restraint, abduction, false imprisonment, felonious assault, manslaughter, murder, blackmail, extortion, obstruction of justice, perjury, witness tampering may be eligible to apply for this non-immigrant status. They may also be able to petition for qualifying family members.
Generally, to be eligible, an individual must be the victim of a qualifying crime, be able to prove substantial mental or physical abuse as a result, and demonstrate helpfulness in the investigation or prosecution of the criminal activity. In some cases, parents of child victims may be eligible for status. If the applicant is in the country unlawfully or has negative immigration history or a criminal record, the applicant will need to file a waiver along with the application.
If U Nonimmigrant Status is granted, the Beneficiary will be able to live and work in the United States for four (4) years, and will be eligible to apply for Lawful Permanent Resident status (a “green card”) after three (3) years.
The T visa is available for victims of severe forms of human trafficking, sex trade or forced labor, on the condition that they help law enforcement officials investigate and prosecute crimes related to human trafficking.
Those who are in the United States due to a severe form of human trafficking, have complied with reasonable requests for cooperation by investigators or prosecutors (or are under 18 years old), and would suffer extreme hardship if forced to return to their home countries may be eligible for this nonimmigrant status. If an applicant has a criminal record or negative immigration history, the applicant may need to file a waiver along with the application.
If T Nonimmigrant Status is granted, the Beneficiary will be able to live and work in the U.S. for four (4) years, and will be eligible to apply for Permanent Resident Status after three (3) years. T visa status may also be extended to certain immediate family members, such as spouses, children and parents (when the victim is under 18 years of age).
Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, the Secretary of Homeland Security announced that certain people who arrived in the United States as children and meet several guidelines may request deferred action for a period of two years. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action is not a lawful status and does not lead to Permanent Resident Status, but recipients will be eligible for employment authorization.
To be eligible to apply for DACA, one must:
- Be under the age of 31 as of June 15, 2012;
- Have come to the United States before reaching his or her 16th birthday;
- Have continuously resided in the United States from June 15, 2007 up to the present time;
- Have been physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
- Have entered without inspection before June 15, 2012, or have lawful immigration status that was expired as of June 15, 2012;
- Currently be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety. For each individual who applies, USCIS will also conduct a background check.
Criminal Case Consultations
Non-U.S. citizens who have been arrested or are the subjects of pending criminal charges are at risk of negative immigration consequences, including deportation. It is very important that an individual’s criminal defense attorney be informed of the immigration consequences of criminal activity so that his or her rights are protected. Often times, a defendant will be encouraged to plead guilty in order to receive a less severe sentence or have charges dismissed; however, a guilty plea, like a conviction, can have devastating consequences on one’s ability to maintain a life in the United States.