V. Family-Based Immigration

Legal Permanent Residency by Family Relationship

A foreign national can obtain green card status in the USA through being the beneficiary of a petition filed on their behalf by a qualifying relative in the USA. While many detailed rules apply, generally the relationships of Husband/Wife, Parent/Child, or Brothers/Sisters may create the basis for a family relative petition. The petitioner must be either a US citizen or Green Card holder in order to apply for their relative to obtain the benefit.

Depending upon the nature of the relationship, the nationality of the person seeking legal permanent residency, and the status of the petitioner there can be waiting lists that will impact how long the foreign national must wait before immigrating to the USA. Call Shumaker Williams for more detailed information about these various categories.

In order to minimize the length of some of these delays, Congress has created several categories of family visas to permit foreign nationals to come to the USA without waiting for years on a waiting list. These visas are described in detail below.

Family/Marital Types of Visas

K-1 Visas (Fiancé(e) Visa)

If your fiancé(e) is not a U.S. citizen, is located overseas and you plan to get married in the United States, then you must file an I-129 petition with U.S. Citizenship & Immigration Services (USUSCIS). After the petition is approved, your fiancé(e) can obtain a K-1 visa at the U.S. Embassy or consulate abroad before he/she may enter the country. The marriage must take place within 90 days of your fiancé(e) entering the United States. If the marriage does not occur within 90 days or if your fiancé(e) marries someone other than you, he/she will be required to leave the country. A fiancé(e) may not obtain an extension of the 90 day original nonimmigrant admission, so plan accordingly.

After your marriage, your fiancé(e) should apply to become a permanent resident. If he/she does not intend to become a permanent resident after your marriage, he/she must leave the country within the 90 day original nonimmigrant admission. Your spouse initially will receive conditional permanent residence status for two years; you must file a joint petition to lift the conditions prior to the second anniversary of obtaining that conditional card. Failure to file the application to lift conditions has serious consequences, as USUSCIS will consider this an abandonment of status and result in the spouse losing their legal residency status.

You also may apply to bring your fiancé(e)'s unmarried children (under age 21) to the United States. The children of the fiancé(e) are deemed K-2 visa holders and must also apply for permanent residence once the marriage takes place.

K-3/K-4 Visas (Spouse or Child of U.S. Citizen)

The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category with the immigration law that allows the spouse or child of a U.S. Citizen to be admitted to the United States in a nonimmigrant category and to complete processing for permanent residence while in the country. It also allows for permission for employment. This process generally gets a spouse to the United States faster than waiting for the I-130 petition to process at the Consulate.

A person may receive a K-3 visa if that person has concluded a valid marriage with a citizen of the United States; has a relative petition (Form I-130) filed by the U.S. citizen spouse on his/her behalf; seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status and has an approved Form I-129F. The petition is forwarded to the American consulate where the individual wishes to apply for the K-3/K-4 visa. The consulate must be in the country in which the marriage to the U.S. citizen took place--if the United States has a consulate which issues immigrant visas in that country. If the marriage took place in the United States, the designated consulate is the one with jurisdiction over the current residence of the foreign national spouse. The foreign spouse's unmarried children under age 21 can be included in the parent's petition and receive K-4 visas with the same privileges as the parent's K-3 visa. However, if a child is 18 years of age or older at the time of marriage then, although the child can receive a K-4 visa and enter the United States, that child cannot obtain a green card and become a U.S. immigrant. The child's K-4 visa will simply expire after two years or when the child reaches the age of 21, whichever occurs first, upon which time the child will have to leave the United States. Accordingly, the family's plan in this situation should include looking for other visa options for the child, including possibly an F-1 student visa. The foreign parent can petition for the child when he or she receives permanent residence.

V Visas (relatives)

The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category (V) within the immigration law that allows the spouse or child of a U.S. lawful permanent resident to live and work in the United States while they wait until they are able to apply for lawful permanent residence status (adjusting status) or for an immigrant visa, instead of having to wait outside the United States as the law previously required.

A person may apply at a U.S. consulate abroad for a V-1 or V-2 visa or seek V-1 or V-2 nonimmigrant status while in the United States, if that person:

is lawfully married to a lawful permanent resident of the United States (V-1), or is the unmarried child (under the age of 21) of a lawful permanent resident (V-2); and

is the principal beneficiary of a relative petition (Form I-130) that was filed by the lawful permanent resident spouse/parent on or before December 21, 2000; and

has been waiting at least three years since the petition was filed for status as a lawful permanent resident because the petition is still pending, or has been approved but an immigrant visa is not yet available or there is a pending application to adjust status or application for an immigrant visa.

The derivative child of a V-1 or V-2 nonimmigrant is eligible for a V-3 visa or for V-3 status.

Persons in V-1, V-2 or V-3 status are eligible to apply for a work permit by filing an Application for Employment Authorization (I-765).

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Please contact Craig Trebilcock at Shumaker Williams for further details.