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.
