Immigration through a Family Member

Overview and Process

A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. If you want to become a lawful permanent resident based on the fact that you have a relative who is a citizen of the United States, or a relative who is a lawful permanent resident, you must go through a multi-step process.

1. The USCIS must approve an immigrant visa petition, I-130 Petition for Alien Relative, for you. This petition is filed by your relative (sponsor) and must be accompanied by proof of your relationship to the requesting relative.
2. The Deparment of State must determine if an immigrant visa number is immediately available to you, the foreign national, even if you are already in the United States. When an immigrant visa number is available, it means you can apply to have one of the immigrant visa numbers assigned to you. You can check the status of a visa number in the Department of State's Visa Bulletin.
3. If you are already in the United States, you may apply to change your status to that of a lawful permanent resident after a visa number becomes available to you. This is one way you can apply to secure an immigrant visa number. If you are outside the United States when an immigrant visa number becomes available, you must then go to the U.S. consulate servicing the area in which you reside to complete your processing. This is the other way to secure an immigrant visa number.

Eligibility

In order for a relative to sponsor you to immigrate to the United States, they must meet the following criteria:

• They must be a citizen or lawful permanent resident of the U.S. and be able to provide documentation providing that status.
• They must prove that they can support you at 125% above the mandated poverty line, by filling out an Affidavit of Support

The relatives which may be sponsored as an immigrant vary depending on whether the sponsor is a U.S. Citizen or a lawful permanent resident.

• If the sponsor is a U.S. Citizen, they may petition for the following foreign national relatives to immigrate to the U.S:
  • Husband or wife
  • Unmarried child under 21 years of age
  • Unmarried son or daughter over 21
  • Married son or daughter of any age
  • Brother or sister, if the sponsor is at least 21 years old, or
  • Parent, if the sponsor is at least 21 years old.
• If the sponsor is a lawful permanent resident, they may petition for the following foreign national relatives to immigrate to the U.S.:
  • Husband or wife, or
  • Unmarried son or daughter of any age.

In any case, the sponsor must be able to provide proof of the relationship.

Preference Categories

If you wish to immigrate as a relative of a U.S. Citizen or lawful permanent resident, you must obtain an immigrant visa number based on the preference category in which you fall.

People who want to become immigrants are classified into categories based on a preference system. The immediate relatives of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by USCIS. An immigrant visa number will become immediately available. The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:

• First preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
• Second Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
• Third Preference: Married sons and daughters of U.S. Citizens.
• Fourth Preference: Brothers and sisters of adult U.S. Citizens.

Once USCIS receives your visa petition (Form I-130, Petition for Alien Relative), it will be approved or denied. USCIS notifies the person who filed the visa petition of the petition was approved. USCIS will then send the approved visa petition to the Department of State's National Visa Center, where it will remain until an immigrant visa number is available. The Center will notify the foreign national when the visa petition is received and again when an immigrant visa number is available. You do not need to contact the National Visa Center, unless you change your address or there is a change in your personal situation, or that of your sponsor, that may affect eligibility for an immigrant visa, such as reaching age 21, marriage, divorce, or death of a spouse.

SERVICES

Our law firm also offers many services to those who are facing removal from the United States. Below are some of the services we offer to our clients; however it is necessary to interview a client, and determine their goals and current immigration status before suggesting which route is best for them. Some of these services are preventative in nature, minimizing the immigration consequence of a criminal conviction. Some of the services fight to keep someone facing removal from being deported. Other services aid persons who are being removed, or who do not wish to fight removal, in expediting their deportation to their country of origin, or minimizing future consequences of being deported, incase they wish to someday return to the U.S. Finally, some of these services help those who have been deported return to the United States, as quickly as possible.

Appeal of an Immigration Judge’s Decision to the Board of Immigration Appeals:
After an Immigration Judge has rendered a decision in your case you have a very limited amount of time to file an appeal of that decision. Our firm can represent you in front of the BIA, writing and filing a brief in support of your appeal. This brief is a combination of facts and law, as well as supporting documents and affidavits, which can be used to persuade the Board of Immigration Appeals that the Immigration Judge has made an incorrect decision in your case, and that you should not be deported to your country of origin.

Motion to Reopen:
A motion to reopen can only be made after the Board of Immigration Appeals has decided your case. It is used to ask the BIA to look at new evidence or a change in situation in your case.

Motion to Reconsider:
A motion to reconsider can only be made after the Board of Immigration Appeals has decided your case. This motion is used when you do not have new evidence of a change of circumstances in your case, but wish the BIA to reconsider its previous ruling.

Motion to Remand:
A motion to remand can only be made before the Board of Immigration Appeals has decided your case. It is used to ask the BIA to look at new evidence, of a change in situation in your case, while you are waiting for the board to make a decision in your case.

Motion to stay removal:
Not all actions taken by a defendant in removal proceedings automatically stop the DHS from removing that person from the United States. Many times the deportee must request that the court stay their removal, or they may still be deported, even if they are challenging their case before an Immigration or Federal Court.

Appeal to Federal Circuit Courts:
In many cases if someone is facing removal, and is denied relief before the Board of Immigration Appeals, they may appeal the BIA decision in the Federal Circuit Court located in the jurisdiction in which they appeared before the Immigration Judge.

Petition for Habeas Corpus to a Federal District Court:
Habeas Corpus is the name of a legal instrument or writ, by means of which detainees can seek release from unlawful imprisonment. Many of those who pled guilty to criminal charges were not apprised by counsel or the court of the possibility of facing deportation, due to a criminal conviction, at the time they plead guilty, or were sentenced.

Vacating the criminal conviction upon which the removal is based:
It may be possible in some cases to return to criminal court to have the criminal conviction upon which the deportation is based vacated. Without this conviction the person facing removal may no longer be deported, if the criminal conviction is vacated for reasons other than that the person is being deported

Private bill:
A private bill is an act considered or acted upon by the legislature, that helps a single individual, by affording relief from a law, (such as removal under the INA) granting a unique benefit, or relieving the individual from legal responsibility for some allegedly wrongful act.

International Prisoner Transfer Program:
This is a Government sponsored program which is designed to relieve some of the special hardships that fall upon offenders incarcerated far from home, and to facilitate the rehabilitation of these offenders. Prisoners may be transferred to and from those countries with which the United States has a treaty, even if they have not served the full sentence for the crime which they committed in the United States.
Here is a list of participating countries: http://www.usdoj.gov/criminal/oeo/lists.htm

Waivers:
If a loved one has been deported, they may be able to obtain a discretionary waiver (I-601). If the deportee has a wife, child or parent of a US citizenship or legal permanent resident status, they may obtain a waiver if they show that the denial of the waiver would result in an extreme hardship to the qualifying relative. Note: This waiver is not available for all crimes.

Employment Based Immigration

• How Do I Become an Immigrant Based on Employment?
• Who is Eligible for Employment Based Immigration?

An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment.

1. The USCIS must approve an immigrant petition (application) that was filed for you, usually by an employer.
2. In most employment categories, a U.S. employer must complete a labor certification request (ETA 750) for you from the Department of Labor.
3. The State Department must give you an immigrant visa number, even if you are already in the United States.
4. If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.

There are five categories of employment based immigration:

• First Preference (EB-1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
• Second Preference (EB-2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
• Third Preference (EB-3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
• Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
• Fifth Preference (EB-5 Employment Creation) If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise.

Information excerpted from U.S. Citizenship & Immigration Services' website.

The information contained on this website is for general informational purposes only and is not intended to be legal advice.

Please contact our office at  (718) 263-2100 to schedule a consultation with one of our experienced immigration attorneys.