Family-Based Immigration

It may not seem like it to the thousands of immigrant families who are separated from loved ones for years due to immigration laws, but family unity has traditionally been one of the primary goals of immigration policy in the U.S.. It remains the most common way for individuals to apply for immigration benefits, though it often presents applicants with the most procedural roadblocks. Dalbir Singh & Associates can work with you to help you understand the process and explain your options.

There are two categories of family-based immigrants: “immediate relatives” and relatives who fall under the “family preference system.” The main difference between these two is that immediate relatives do not have to wait in line in order to become eligible for visas.

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Immediate Relative Category

This category of immediate relatives requires that the petitioner (the person with legal immigration status in the U.S.) be a U.S. citizen. It is limited to the following relatives of the citizen applicant:

1. Spouse
2. Parent (if and only if the applicant is aged 21 or older)
3. Unmarried children of the citizen (if they are 21 years of age or younger)

Immediate relatives enjoy many advantages over other categories of relatives. First, there is no limit to the number of immediate relatives the U.S. can accept as immigrants into the U.S. each year. Further, if they have entered the U.S. legally, immediate relatives are exempt from certain grounds of “inadmissibility,” such as accepting employment without authorization, overstaying their visas, or otherwise violating the immigration status on which they entered – all of which can present serious, often insurmountable problems for other categories of immigrants.

Family Preference Category

This category includes other family members who do not fall under the “immediate relative” classification. The main obstacle for non-immediate relatives is the quota, or “cap” imposed on the number of relatives that can be admitted each year. For many categories and countries, this number falls far below the actual number of eligible applicants, meaning many individuals must wait in lines that can exceed 18-20 years for a visa to become available. For this reason, it is important to consult with us at the earliest to discuss the process early.

The length of the wait and the ease of processing will depend on which country the family member is immigrating from, as well as the relationship they have with the petitioner. One benefit of the family preference category is that it allows Legal Permanent Residents, not only U.S. Citizens, to apply for their family members.

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Conditional Permanent Residents

Conditional permanent residence is granted to the spouses of  U.S. citizens who have been granted lawful permanent residence based on a marriage that occurred less than two years before the immigrant’s green card application was approved. It applies to many people, as most people prefer to petition for their spouses as soon as they are eligible – immediately after they are married. This provision was created so that the government can ensure that the marriage was “bona fide” – or legitimate at the time it was entered and did not exist solely for immigration purposes.

When an individual is granted conditional permanent residence, he or she enjoys all the rights and benefits of a Legal Permanent Resident. However, in order to remain in the U.S. in lawful status, they are allotted a strict 90-day window prior to the two-year anniversary of being granted conditional residence in which to apply to remove conditions. Removing conditions means they are asking the government to change their status from a conditional permanent resident to a Lawful Permanent Resident (LPR), whose status can potentially remain valid forever. Because of the government’s strict interpretation of the 90-day window, it is important that conditional residents are cognizant of the date they become eligible to apply to remove the conditions and don’t miss the deadline. Individuals who want to know more anout conditional permanent residents should contact us today.

Defining the Child Status Protection Act

The Child Status Protection Act or CSPA is an important topic because it allows beneficiaries that were minors to remain minors for the purpose of obtaining an immigration benefit. Before CSPA, a child could not enjoy benefits after attaining 21 years of age before a petition was approved.  Congress changed this provision and now if a petition is filed by a U.S. citizen parent for their child, the beneficiary’s age freezes on the date of filing that petition. If a permanent resident parent files a petition for their child and that parent naturalizes before the beneficiary turns 21, the beneficiary’s age freezes on the date the petitioner naturalized.

Special Immigrant Juvenile Petition (SIJP)

Some children present in the United States without legal immigration status may be in need of humanitarian protection because they have been abused, abandoned, or neglected by a parent. Special Immigrant Juvenile (SIJ) status is an immigration classification that may allow for these vulnerable children to immediately apply for lawful permanent resident status (“LPR” status or a “Green Card”).

Juvenile courts issue orders that help determine a child’s eligibility for SIJ status. A child cannot apply to USCIS for SIJ status without an order from a juvenile court.However, juvenile judges should note that providing an

order does not grant SIJ status or a “Green Card” – only USCIS can grant or deny these benefits. The role of the court is to make factual findings based on state law about the abuse, neglect, or abandonment; family reunification; and best interests of the child.

What are the General Requirements for Applying to CSPA?

CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of the visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate their petition. The general requirements for CSPA are that:

  • The beneficiary has a pending or approved visa petition on or after August 6, 2002
  • The beneficiary not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002
  • The beneficiary seeks to acquire permanent residence within one year of a visa becoming available.

USCIS interprets “seek to acquire” as having Form I-824, Application for Action on an Approved Application or Petition filed on the child’s behalf or the filing of an I-485.  Calculating at what age the date freezes is essential, it requires knowing the child’s date of birth, the priority date, the approval date, and the current visa bulletin date. For more information on the impact of CSPA, contact a Dalbir Singh & Associates as soon as possible.

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