Family immigration visas form a cornerstone of the United States immigration system, strengthening the country’s commitment to reuniting families. This visa category allows U.S. citizens and lawful permanent residents to sponsor certain family members for immigration to the United States.
The process, governed by complex regulations and subject to various eligibility criteria, has the goal of bringing families together while maintaining the integrity of U.S. immigration policies. The family-based immigration route offers different types of visas, each tailored to specific family relationships, and operates within an annual quota system, which often results in significant waiting periods.
As a critical pathway for many seeking a new life in the U.S., understanding the rules and requirements surrounding these types of visas is crucial. This process ultimately can lead to fulfilling the American Dream through the Naturalization Process. Zepeda Law Firm, PLLC can help you understand and navigate the complexities of applying for the different types of family immigration visas. Our offices are located in Fort Worth, Texas, as well as Southlake, Texas.
1. Types of Family-Based Immigrant Visas
2. The Application Process
3. Issues That Arise During the Residency Process
4. Naturalization
Types Of Family-Based Immigrant Visas
Family immigration visas in the United States are categorized into two main types: Immediate Relative visas and Family Preference visas.
- Immediate Relative Visas: (Immediate Visa Available) These visas are for close relatives of U.S. citizens, such as spouses; unmarried children of a U.S. citizen-the children are under 21 years old; an orphan adopted abroad by a U.S. citizen; an orphan from abroad to be adopted in the United States by a U.S. citizen; as well as the parents of a U.S. citizen (as long as the sponsor is over 21 years of age). The number of immigrants in these categories is not limited to each fiscal year.
- Family Preference Visas: (Must wait for visa availability) These visas are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with Lawful Permanent Residents (LPRs). Under this category, U.S. citizens can petition for their siblings (as long as the sponsor is over 21 years of age), married children, and adult unmarried children. LPRs can petition for their spouses and unmarried children. The number of immigrants in these categories is limited each fiscal year. Please refer to the DOS Visa Bulletin for visa availability.
The Application Process For Family-Based Visas
To begin the family-based visa process, the sponsor may either file a petition on behalf of their family member within the United States (Adjustment of Status) or file a petition to process their residency from outside the United States (Consular Process).
Adjustment of Status (AOS)
You are eligible to Adjust your Status within the United States(you do not have to leave the U.S.) if you are already living in the United States and you were inspected, admitted, or paroled into the United States, or have:
- Current Lawful Status in another visa category
- Have a petition filed on or before April 30, 2001
- K1 approved petition
- Approved asylum
- Approved VAWA
- Approved U-Visa or an approved work sponsored petition
To be able to qualify for AOS through family, you must be the spouse, child, parent, or sibling of a U.S. Citizen or Legal Permanent Resident. Please note that if you are a spouse or child of a Permanent Resident, and you entered lawfully, you cannot have an unlawful presence or have worked without authorization, unless you are protected under 245i.
Employment Authorization/Travel Authorization
During the process of AOS pending, you are able to receive an Employment Authorization Card that will allow you to get a valid social security card and a driver’s license. In some cases, you are also permitted to get a Travel Permit that will be attached to your Employment Authorization Card that will allow you to travel should you need to.
Consular Processing
If you are outside of the U.S. you can apply for your residency through the U.S. consulate in your home country or your country of last residence.If you are outside of the United States and you have an approved immigrant petition and there is an immigrant visa number immediately available, then you are eligible to apply for an immigrant visa to come to the U.S. and be admitted as a Permanent Resident. For the immediate relative immigrant visa petitions, you do not have to wait for a priority date to become current before continuing to schedule your consular interview. This causes the process to be quicker than the Family Preference category.For the family preference immigrant visa petitions, you do have to wait until the priority date becomes current, which you can find on the visa bulletin board.
Issues that Arise During the Residency Process
Oftentimes we come across families wanting to bring their families into the U.S. or help them stay in the U.S., but after a thorough attorney-client consultation, we find out their issues from their past that could render them inadmissible for residency. We often see immigration violations or past applications that could affect the outcome of someone’s family-based petition. Here are some of the most frequent issues a client has and needs to be aware of:
CSPA – Child Status Protection Act
Since some visa application processes take a long time, it is possible that someone who qualified as a “child” at the beginning of the application process turns 21 before getting a U.S. immigrant visa. Since the law requires the person to still be under 21 at the time the visa or green card is approved, this “aging out” can create problems. However, a law called the Child Status Protection Act (CSPA) outlines circumstances to help children with this “aging out” problem. It allows certain persons who are older than 21 to qualify for their visa or green card as if they were still “children.”
This has affected so many people by not knowing what they needed to have done to “lock in their age” or “freeze their age” to make sure they are still considered a “child” for immigration purposes. Please call Zepeda Law Firm to speak to attorneys to see if this is your situation or if you are close to turning 21 and want to make sure you are protected.
Deportations/Expedited Removals/Voluntary Returns at the Border
The Need for Record Checks (FOIA and FBI checks)
If you have been detained at the border, you were caught crossing the border, you presented false documents, you tried entering with your child unlawfully, and were either sent back to your home country or were held by ICE, the first thing we’d need to do is record checks.
The record checks are done to see any criminal or immigration offenses you could have been charged with, any immigration documents put in, and to verify how many times you were actually detained. This information is needed to make sure you don’t have any bar issues with your residency. Please call Zepeda Law Firm to speak to attorneys to put in an FBI search, a FOIA search, an OBIM search, and an EOIR search.
Provisional Unlawful Presence Waivers – I-601A
If you came into the U.S. unlawfully and accrued more than 365 days of unlawful presence while in the United States, you must submit a waiver of inadmissibility to be forgiven or “pardoned” for your unlawful presence in the U.S. This waiver must be approved before you either have your AOS approved or before you continue to schedule your interview with the Consulate of your home country. If you leave before the waiver is approved or before even filing the waiver, then you have a bar and become inadmissible at the consulate level which would mean you’d have to file the waiver from your home country and stay over there while it is pending.
The waiver must demonstrate that denying admission to the U.S. will cause extreme hardship to either your U.S. Citizen Spouse or Parent or Legal Permanent Resident Spouse or Parent.
Waiver of Grounds of Inadmissibility- I-601
There are different reasons why you may be found inadmissible and be denied your visa or residency. Some inadmissibility grounds for which you would need to submit a waiver are:
Criminal Grounds:
- Crime Involving Moral Turpitude (CIMT): Examples are robbery, assault, and domestic violence. Petty offense exceptions may apply.
- Controlled substance violations for marijuana under 30 grams
- Two or more convictions of CIMT
Alien Smuggling:
If you encouraged, induced, assisted, or abetted, or aided someone to come into the U.S. unlawfully but that person was your spouse, parent, son, or daughter. There is no waiver for any other family member.
Qualifying Relatives: Under the criminal grounds of alien smuggling, you must submit evidence showing that your spouse, parent, or child will experience extreme hardship if you are denied this waiver and not allowed to become a legal permanent resident.
Immigration Fraud or Misrepresentation:
You tried to get an immigration benefit by using fraudulent means or by misrepresenting a material fact. For instance, you used a fraudulent document to obtain entry into the U.S. There is no waiver for claiming to be a U.S. Citizen unless you timely retracted, you fall under one of the exceptions, or under a U Visa.
Unlawful Presence Bar:
You either have a 3-year or 10-year bar after having either more than 6 months of unlawful presence but less than one year, or you have over 1 year of unlawful presence, and then left the United States. The time can run cumulatively, even after several entries. However, in that instance, you might have issues with fraud.
Qualifying Relatives: Under the fraud or unlawful presence bars, you must submit evidence showing that your spouse or parent would experience extreme hardship if you were denied this waiver and not allowed to become a legal permanent resident.
Naturalization/Citizenship
Being a citizen of the United States is a requirement for legal employment, as well as many of the privileges afforded by government programs such as Medicaid and Medicare, and retirement benefits from Social Security.
If you are not born a United States Citizen, you may still be eligible for citizenship through the normal naturalization process or through the acquisition of citizenship.
Naturalization is an administrative process that requires a non-citizen to comply with a whole host of immigration laws. In order to obtain citizenship through Naturalization, the following requirements must generally be met:
- Residence in the U.S. as a legal permanent resident for 5 years (3 for spouses of U.S. Citizens), more than half of which include a physical presence in the U.S.
- The individual seeking citizenship must not have another permanent residency in any other country during such time.
- Meet requirements for “good character”
- Interview with the United States Citizenship and Immigration Services (USCIS)
The application and interview process for U.S. citizenship can be complicated and time-consuming. Our immigration law firm can help you navigate the very complex requirements and procedural rules of the application process.
Acquisition of Citizenship is obtained through U.S. citizenship parents either at birth or after birth, but before the age of 18. The U.S. Citizenship laws have changed over the decades so the evidence needed will vary depending on when you were born. We have been successful in getting clients citizenship after decades of illegal presence proving parental physical presence in the United States during the required period of time. It is important to consult an immigration attorney whenever you might have parents (or in some instances grandparents) that are born U.S. Citizens, or have a child born abroad to a U.S. Citizen, or also when the child enters the United States as a Permanent Resident before their 18th birthday. Please protect your children’s status and opportunities.
Contact Our Family Law Immigration Attorneys Today
A key consideration is that these family immigration visa categories have specific requirements and filing processes that must be met. An attorney experienced in immigration law can help you navigate the criteria for these different types of visas. Zepeda Law Firm prides itself on carefully developing strategies to suit your particular case, and we will offer constant legal and moral support to you and your family. Contact Zepeda Law Firm today for your initial consultation.