Green Card - Family Petitions
A person who marries a citizen
can qualify for immigration
in this category. The marriage
must not be a "sham,"
of course that is, one entered
into in order to obtain an
immigration benefit. The marriage
must be legally entered into
that is, both parties were
free to marry, all prior divorces
were legal, and the marriage
formalities themselves are
recognized as legal in the
jurisdiction where the marriage
occurred. The marriage must
still legally exist the parties
cannot be divorced or legally
separated. But the marriage
need not be viable even if
the parties are separated,
if they have not entered into
a legal separation agreement
or gotten divorced they still
have a valid relationship
for immigration purposes.
The spouse of a citizen whose
marriage was created within
two years prior to being granted
permanent residence is granted
residence on a conditional
basis. He or she is a full
permanent resident in all
respects eligibility for employment,
ability to travel freely in
and out of the United States,
accumulation of time toward
compliance with residence
and physical presence requirements
for naturalization as a U.S.
citizen but that residence
is subject to termination
within two years after it
is granted if the marriage
has terminated by divorce
or annulment during that period,
or the marriage turns out
to be sham.
Battered
Spouses of U.S. Citizen
Battered spouses of citizens
may also file their own immediate
relative petitions. To qualify,
the alien spouse must be a person
of "good moral character,"
must have entered the marriage
in good faith, must have resided
in the United States with the
citizen spouse, and must have
been battered or subjected to
"extreme cruelty"
by the citizen spouse. Any credible
evidence submitted with the
spousal petition with regard
to the treatment of the alien
spouse will be considered by
the INS. The law provides identical
benefits to battered children
of a U.S. citizen. The self-petitioning
procedure for battered spouses
was enacted in 1994 as part
of the Violent Crime Control
and Law Enforcement Act of 1994.
Widowers
of U.S. Citizen
Spouses of
deceased citizens qualify as
immediate relatives for whom
immigration may be sought under
some circumstances. In order
to qualify, the alien must have
been the spouse of the deceased
citizen for at least two years
and must not have been legally
separated at the time of the
citizen's death. The alien spouse
must file an immediate relative
immigrant visa petition within
two years after the date of
death and must still be unmarried
at that time. Alien spouses
seeking residence on this basis
must use a different form than
other family-sponsored immigrants,
Form I-360, which they can file
themselves. The unmarried minor
children of the alien spouse
may be included in the petition
as well, under a provision of
the technical corrections bill
passed by Congress in October
1994.
Parents
of U.S. Citizen
Parents of U.S. citizens are
eligible to immigrate as immediate
relatives, but only if the citizen
is 21 years of age or older.
The citizen must be able to
qualify as a child of the parent
according to the rules just
outlined, except of course that
the citizen must be over the
age of 21 and can be married.
To determine whether a parent
qualifies for immigration, then,
it is essential to look at the
parent-child relationship in
the same way as you would if
you were determining whether
a child would qualify.
Spouses
and Unmarried Sons and Daughters
of Permanent Resident Aliens
The second
family-sponsored preference
is set aside for two groups:
preference 2A includes spouses
and children the immediate family
members of permanent residents,
and preference 2B includes the
rest of the current second preference
category, unmarried adult sons
and daughters of residents.
The entire preference category
is allotted a minimum of 114,200
annual visas. Any visas unused
by the first family-sponsored
preference will go to the second
family-sponsored preference.
77% of the annual visas goes
to the 2A sub-preference and
the other 23% goes to the 2B
sub-preference. There is a waiting
list for visas to immigrate
in this category, regardless
of the alien's country. The
rules for determining who is
a spouse are the same as those
set forth for citizenship petitions.
The sons and daughters of residents
must either presently qualify
as "children" as that
term is strictly defined in
the immigration law, or have
qualified as children when they
were under 21 years of age.
The immediate family members
of qualifying aliens can also
immigrate with them in the second
preference category. Example:
The child of a formerly married
but presently unmarried son
or daughter of a resident can
immigrate with the son or daughter.
NOTE: Spouses of permanent residents
whose marriage was created within
two years prior to the grant
of permanent residence are given
residence on a conditional basis.
Residence can be terminated
up to two years after it was
conferred if the marriage has
ended in divorce or annulment
or it turns out that it was
a sham marriage entered into
for immigration purposes.
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