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PETITIONING FOR FAMILY MEMBERS BY UNITED STATES CITIZENS

Disclaimer:  The information provided in this handout is for informational purposes only and is not intended as legal advice.  Always seek the advice of an attorney before applying for any immigration benefit. 

 

I AM A UNITED STATES CITIZEN.

HOW CAN I BRING MY RELATIVES TO THE US?

One benefit of being, or becoming, a United States Citizen is that it is easier if you want to bring your immediate relatives to the US to live with you, or if you want to marry someone who is not already lawfully in the US.

Who qualifies as an immediate relative? Why is that important?

An immediate relative is:

  • A Spouse of a U.S. citizen
  • Unmarried children under 21 years of age of a U.S. citizen
  • Parents of a US citizen where the U.S. citizen is over 21 years of age
  • Certain widows or widowers of U.S. citizens if the widow or widower was married and not legally separated at the time of the USC spouse death. 

These relationships are given high priority in our immigration system.  Accordingly, there is no limit to the number of visas available to immediate relatives of United States Citizens.

However, there are no derivative visas available to family members of immediate relatives.  So if a United States Citizen sponsors his mother, she can’t also bring her other children in as a beneficiary of the immigrant petition.  Only the immediate relative is eligible for an immigrant visa.

Are there special requirements if the immigrant visa petition is based on marriage?

If the immediate relative petition is based on marriage, and the marriage is less than two years old, the spouse is only granted conditional permanent resident status.  After two years the couple must file form I-751 for removal of conditions.  This will require you to provide “bona fides” or proof that the marriage is legitimate and valid and not for immigration purposes.  It will also require you to attend an interview at USCIS before the conditions are removed.

How do I prove my marriage is legitimate?

If you are filing a petition based on a spouse that is subject to conditional status, you should right away begin gathering and keeping documentation and other evidence that will show that your marriage is a real marriage and not what USCIS calls a “sham” marriage.

Some things that can be used as evidence are:

  • Tax returns
  • Joint bank accounts
  • Photographs of vacations, family trips, family events
  • Wedding photos
  • Marriage Certificate
  • Letters from friends
  • Utility and mortgage bills in both names
  • Shared social media accounts or social media posts referencing joint activities
  • Children – birth certificates naming both the USC and spouse as parents
  • Any other evidence of a life together

What if my marriage fails before the two years is up?

If a couple enters into a valid marriage but it does not last, a visa petition filed on behalf of the spouse of the USC may still be accepted, however the government will probably take a closer look at whether the marriage was in fact valid.

What about same sex marriages?

Same sex marriages are legal in the United States, therefore same sex marriages are valid for immigration purposes.

What about common law marriages?

Common law marriages are valid for immigration purposes if common law marriages are recognized in the state where the couple resides.  Texas does recognize common law marriages, and, in fact, has fairly liberal common law marriage rules.  Filing for immigration benefits based on a common law marriage may, however, invite heightened scrutiny from USCIS.

THE PETITION PROCESS

How do I start the process to file a petition for my immediate relative?

The first document to file is the Petition for Alien Relative, which is called the I-130.  This is the form used regardless of the type of immediate relative in the petition, whether a spouse, an unmarried minor child, or parent.  The filing fee for the I-130 document is currently $535.00. 

Most people should also be able to file to adjust status to Legal Permanent Resident for their relative at the same time.  This is what we call a “one-step” application.  The form for that is the I-485 and the filing fee is currently $1140.00.  You will need to provide a biometrics fee of $85.00 as well.

For these applications you will need passport size photos of both the petitioner and the beneficiary.  You will also need proof of the U.S. Citizenship of the petitioner, and proof of the relationship between the United States Citizen the family member.

AFFIDAVITS OF SUPPORT

The U.S. citizen filing on behalf of an immediate relative will also need to demonstrate to USCIS that the immigrant will not become a public charge.  (See the public charge handout for more information on public charge issues).  Therefore, a petitioner, the person filing for their relative, must also submit an Affidavit of Support.  This is form I-864.  There is no fee for filing this form. 

The Affidavit of Support is a sworn and binding document in which the petitioner agrees to support the intending immigrant such that the immigrant will not access any means- tested public benefits. Typically the sponsor must have an income 125% or more above the federal poverty guideline. What that number is depends on the income of the sponsor/ petitioner and the number of family members.  You can demonstrate sufficient income by submitting tax returns and wage statements.  If you cannot meet the income guidelines, you can get a co-sponsor who would also have to file an affidavit of support.  

It is important to understand and take seriously this requirement.  Recent changes in USCIS practice may result in the government seeking re-imbursement for any benefits the immigrant accesses. 

I hope this information helps you to understand the process for a United States citizen to petition for an immediate relative.  Please note that if there are any complications, such as prior unlawful entries, unlawful presence, prior removal orders, or criminal convictions on the part of the immigrant, this process may require waivers. 

Because immigration law can be very complicated, you should always consult with an attorney before filing any immigrant petitions.

Contact me at (915) 209-5910 to schedule a consultation to get your immediate relative petitions filed.  I will be happy to help you keep your family together. 

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