Family Based Petitions

For over one decade our firm has assisted reunited clients with their family members through family-based petitions. It is a great joy to take part in such reunifications. The ability to sponsor family members depends on the status of the petitioner. Below is a detailed outline of the eligibility requirements for each type of family based filing taken from the USCIS website for information purposes.

Family of U.S. Citizens

This chart describes how you (a U.S. citizen) may petition for certain family members to receive either a green card, a fiancee visa or a K-3/K-4 Visa based on your relationship.

 

 

Table: Relatives for Whom You (U.S. Citizen) May Petition 

Type of Relative for Whom You May Petition Immigration Benefit
Green Card (Permanent Residence)
  • A fiancé(e) residing outside the United States and children of fiancé(e) under 21
Fiancé(e) Visa
  • Spouse
  • Children of spouse (unmarried and under 21)
K-3/K-4 Nonimmigrant Visa

 

Application Process: Green Card (Permanent Residence)

To petition for a family member to receive a green card (permanent residence), you begin by filing Form I-130, Petition for Alien Relative. This form establishes the family relationship that exists between you and your relative. Sometimes the I-130 can be filed together with an application for permanent residence, officially know as Form I-485, Application to Register Permanent Residence or Adjust Status. This is discussed below.

Which Relatives May I petition for?

Immediate Relatives Other Family Members
The term “immediate relative(s)” is used to define certain immigrant relatives of U.S. citizens. Immediate relatives include:

  • Spouses of U.S. citizens
  • Children (unmarried and under 21) of U.S. citizens
  • Parents of U.S. citizens (The petitioning citizen must be 21 or older.)

For immediate relatives of U.S. citizens, visas are always available, which means that your family member does not need to wait in line for a visa. Immediate relatives who are in the United States can file Form I-485, Application to Register Permanent Residence or Adjust Status at the same time as Form I-130.

Preference categories apply to family members who are not immediate relatives. The visas alloted for these categories are subject to annual numerical limits. A visa becomes available to a preference category based on the priority date (the date the Form I-130 was filed). Preference categories are grouped as follows:

  • First preference: Unmarried, adult sons and daughters of U.S. citizens (adult means 21 or older.)
  • Second Preference (2A): Spouses of green card holders, unmarried children (under 21) of permanent residents
  • Second Preference (2B): Unmarried adult sons and daughters of permanent residents
  • Third Preference: Married sons and daughters (any age) of U.S. citizens
  • Fourth Preference: Brothers and sisters of adult U.S. citizens

For current wait times, see the “USCIS Processing Time Information” page on uscis.gov website and the “Visa Bulletin” page on the U.S. Department of State website. For more information on priority dates, see the “Visa Availability and Priority Dates” page.

What Happens Next?

  • If your relative is already in the United States, he or she may apply to adjust status to become a green card holder (permanent resident) after a visa number becomes available using Form I-485.
  • If your relative is outside the United States, your petition will be sent to the National Visa Center (NVC). The NVC will forward your petition to the appropriate U.S. consulate when a visa becomes available and your relative will be notified about how to proceed. This process is referred to as “Consular Processing.”
  • Your family member’s preference category will determine how long he or she will have to wait for an immigrant visa number. Once you have filed a petition, you can check its progress the “My Case Status” page on the USCIS.gov website. For visa availability information, see the “Visa Bulletin” page on the U.S. Department of State website.

 

NOTE: A visa petition (Form I-130 or Form I-129F) is only used to demonstrate a qualifying relationship. An approved petition DOES NOT grant any benefit, it simply creates a place in line for visa processing.

Members of the Military

If you or a member of your family is in the U.S. military, special conditions may apply.  Speak to one of our knowledgeable Attorneys today. 240.644.2637 – at your service.

Family of Green Card Holders (Permanent Residents)

As a green card holder (permanent resident), you may petition for certain family members to immigrate to the United States as permanent residents.

You May Petition For The Following Family Members:

  • Spouse (husband or wife)
  • Unmarried children under 21
  • Unmarried son or daughter of any age

 

Application Process

To obtain a green card for your family member, you must:

  • File Form I-130, Petition for Alien Relative
  • Provide proof of your status to demonstrate that you are a permanent resident.
  • Submit evidence of the qualifying relationship such as a birth certificate, marriage certificate, divorce decree, etc. See the form instructions for specific documents required.
  • Submit proof of any legal name change for you or your family member (the beneficiary).

See the instructions for Form I-130, Petition for Alien Relative, for detailed instructions.

If you or a member of your family is in the U.S. military special conditions may apply to your situation. For information and additional resources, see the “Information for Members of the Military and their Families” link to the right.

Preference Categories

When petitioning for your relative, the following preference categories apply:

  • First preference: Unmarried, adult sons and daughters of U.S. citizens. (Adult means 21 or older)
  • Second Preference (2A): Spouses of green card holders, unmarried children (under 21) of permanent residents
  • Second Preference (2B):  Unmarried adult sons and daughters of permanent residents
  • Third Preference: Married sons and daughters (any age) of U.S. citizens
  • Fourth Preference: Brothers and sisters of adult U.S. citizens

A visa becomes available to a preference category according to the priority date (the date the I-130 was properly filed.

What Happens Next?

  • If your relative is already in the United States legally, he or she may apply to adjust status to become a permanent resident after a visa number becomes available using Form I-485, Application to Register Permanent Residence or Adjust Status.
  • If your relative is outside the United States, your petition will be sent to the National Visa Center (NVC). The NVC will forward your petition to the appropriate U.S. consulate when a visa becomes available and your relative will be notified about how to proceed. This process is referred to as “Consular Processing.”
  • Your family member’s preference category will determine how long he or she will have to wait for an immigrant visa number. Once you have filed a petition, you can check its progress on “Check My Case Status”on the USCIS.gov website. For visa availability information, see the “Visa Bulletin” on the US Dept of State website.

 

Note: A visa petition (Form I-130) is only used to demonstrate a qualifying relationship. An approved petition DOES NOT grant any benefit except to create a place in line for visa processing.

As these charts and lists demonstrate, the process is both confusing and lengthy. To ensure that you are reunited with your love one in the most expeditious fashion, let our professional legal team assist you in filing the family based petition for your family member. Call us for more information at Takemori Law Firm LLC , 240.644.2637.

 

Family of Refugees &Asylees

 

If you entered the United States as a refugee within the past 2 years or were granted asylee status within the past 2 years, you may petition for certain family members to obtain derivative refugee or asylee status.

You May Petition for the Following Family Members:

  • Spouse
  • Child (unmarried and under 21 when you first applied for asylum or refugee status)

 

Eligibility Criteria

  • As the petitioner, you must be a principal refugee or asylee. This means that you were granted refugee or asylee status directly and did not obtain it through a relative.
  • You entered the United States as a refugee within the past 2 years or were granted asylum within the past 2 years.
  • You remain in refugee or asylee status or have become a permanent resident (received a green card). If you have already become a U.S. citizen through naturalization, you cannot petition to obtain derivative refugee or asylee status for a relative. However you may still be able to help family immigrate to the United States. See the “Family of U.S. Citizens” link to the left for more information.
  • The family relationship had to exist before you came to the United States as a refugee or were granted asylum:
  • Your child had to be conceived (this means the mother was already pregnant) or born before you entered as a refugee or were granted asylum.

 

As there is a time limit attached to the filing of derivative refugees or asylee family members it is best to allow an experienced immigration Attorney process all USCIS paperwork. Our team has over a decade of legal experience working with refugees and asylees. Therefore, we are highly knowledgeable about making such petitions. We are ready to assist you and your family in this final step towards reunification. Call us today, at Takemori Law Firm LLC, 240.644.2637.

 

Same-Sex Marriages

Our firm is pleased to announce that we have already been successful in filing same-sex marriage cases as of early 2014. No requests for evidence were issued and a smooth interview was had due to the excellent preparation by our team of Attorneys and paralegals here at Takemori Law Firm, LLC. We look forward to many more successful DOMA cases.

Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013:

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Frequently Asked Questions

Petitioning for my Spouse

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa? 
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.

Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex.  Can I file a fiancé or fiancée petition for him or her?
A2. Yes.  You may file a Form I-129F.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.

Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? 
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.  Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.  The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.

Applying for Benefits 

New Applications and Petitions:

Q4.  Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?
A4.  No.  You may apply right away for benefits for which you believe you are eligible.

Previously Submitted Applications and Petitions: 

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?
A5.  USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3.  If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).

Once your I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided.   USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).

Additionally, if your work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.  If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization.  If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant.  In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure.  In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.

 Changes in Eligibility Based on Same-Sex Marriage

Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées?  In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits?
A6. Yes.  Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.”  Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum.  In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.

Q7. If I am seeking admission under a program that requires me to be a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility?
A7. There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect  whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident.  In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Residency Requirements

Q8. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
A8. Yes.  As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident.  But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen.  For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Inadmissibility Waivers 

Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances.  For some of those waivers, the person has to be the “spouse” or other family member of a U.S. citizen or of a lawful permanent resident.  In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,” will same-sex marriages count for that purpose?
A9.Yes.   Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.