Family-based immigration allows citizens and lawful permanent residents of the United States to reunite with their loved ones, and firmly establish roots in the United States, by petitioning for immigrant visas on behalf of certain family members. Family-based immigrants generally fall into one of two general categories: “Immediate Relatives” of United States citizens, and Family-based preference immigrants.
Immediate relatives under the Immigration and Nationality Act (“The Act”) are defined as children, spouses, and parents of United States citizens, subject to certain conditions. As the Act does not set a numerical limit to the number of “immediate relatives” who may immigrate to the United States at any given time, “immediate relatives” may obtain an immigrant visa or adjust their status to that of a lawful permanent resident upon approval of an immigrant visa petition, without having to wait for a visa to become available.
Family-Based Preference Categories
The Act prescribes preference classes for allotment of immigrant visas based on a family relationship other than “immediate relatives”. These include certain other family members of United States citizens and lawful permanent residents. As the Act sets annual numerical and per-country limits for these family-sponsored preference categories, beneficiaries of immigrant visa petitions in these categories must have a visa available to them before immigrating to the United States, or seeking adjustment of their non-immigrant visa status to that of lawful permanent residents. Unfortunately, due to the large numbers of family members wishing to immigrate to the United States, most family-based immigrant categories are oversubscribed resulting in long waits for immigrant visa availability, often lasting several years. Visa availability is tracked by the United States Department of State which publishes a monthly Visa Bulletin summarizing the availability of immigrant numbers. Family-based immigrant classifications are divided into four categories:
- Unmarried Sons and Daughters of United States citizens. This category is comprised of sons and daughters of United States citizens who are over the age of 21 years and have not married. Sons and daughters under the age of 21 years are considered “children” under the Act, and therefore “immediate relatives” not subject to visa numerical limitations;
- Spouses, children, and unmarried sons and daughters of lawful permanent residents: This category is further subdivided into:
- Spouses and children of lawful permanent residents; and
- Unmarried sons and daughters (21 years of age or older). There is no family-based preference category for married sons and daughters of lawful permanent residents;
- Married Sons and Daughters of United States citizens. Any son or daughter who is married falls into this preference category regardless of age; and
- Brothers and sisters of adult United States citizens. This category requires that the United States citizen be over 21 years of age.
Immigration Based On Marriage
A United States citizen or lawful permanent resident petitioning to classify a spouse as an immigrant must demonstrate that they and the immigrating spouse (the beneficiary) have a legal marriage. Generally, if the marriage was valid where performed, it is considered legal unless it violates public policy. Additionally, the petitioner must establish that the marriage was not entered into for the purpose of evading the immigration laws. Therefore, it is possible that a marriage may not be recognized for immigration purposes even though it is legal.
Accordingly, marriage-based immigration has long been controversial due to the fact that the bona fides of a marriage relationship often cannot be objectively measured. A legal marriage is considered to be valid for immigration purposes if at its inception the couple intended to establish a life together and assume certain duties and obligations. Conversely, if the sole intention was to secure the immigrating spouse’s legal residency in the United States, United States Citizenship and Immigration Services (USCIS) will consider the marriage to be fraudulent or a “sham”, and not valid for immigration purposes.
Additionally, the Act penalizes persons who attempt to perpetrate marriage fraud. Such persons may be imprisoned for a period of up to 5 years; fined up to $250,000, or both. Furthermore, the Act prohibits the approval of an immigrant visa petition on behalf of aliens who have previously entered, attempted, or conspired to enter into a marriage in order to evade the immigration laws.
In evaluating the bona fides of a marriage, USCIS has historically been extremely conservative. In other words, USCIS may doubt the good faith nature of a marriage where the average person would not. Unconventional marriages therefore are likely to attract a higher than normal degree of scrutiny. USCIS may scrutinize a marriage more closely and require the petitioner to provide voluminous evidence to document the marriage’s good faith where any of the following factors are present: (a) lack of documentation evincing cohabitation and commingling of funds; (b) discrepancies/inconsistencies between the couple’s statements on matters that a husband and wife should have common knowledge; (c) language difficulties between the couple; (d) vast differences in cultural or ethnic backgrounds; (e) family or friends unaware of the marriage; (f) marriage was arranged by a third party; (g) marriage occurred while the beneficiary is in removal (deportation) proceedings; (h) lack of, or interruption of cohabitation since the marriage; (i) the petitioner has previously filed visa petitions for other prior spouses; (j) a marriage contracted where the parties have known each other for only a short time; (k) an interracial marriage; (l) vast class or economic differences between the parties; (m) a marriage performed only before a justice of the peace/notary without a wedding ceremony or reception; (n) the parties have not informed their family or friends of the marriage; (o) where one spouse works the night shift, and the other works days or have a commuting relationship; and/or (p) a marriage which was not arranged by the parties’ families, when the couple comes from a country where arranged marriages are the norm. If “red flag” characteristics are present in the relationship it is not unheard of for USCIS to suspect fraud even when the parties have had children together, or have purchased a home jointly and/or otherwise commingled their assets.
However, past judicial decisions have recognized the reality that legitimate marriages come in all shapes and sizes, and have upheld the validity of bona fide marriages despite any unconventional characteristics. Therefore, if at the inception of their marriage a couple had a viable marital relationship; intended to establish a life together and accept the duties and obligations attendant to the marriage relationship; and did not marry solely for the purpose of evading the immigration laws, an immigrant visa petition based on the marriage should be approved provided that it is well-documented and the couple is properly prepared for their interview before USCIS (if one is required).
Under the Immigration Marriage Fraud Amendments of 1986 (IMFA), Congress imposed special requirements on certain spouses and step-children of United States citizens who immigrate to the United States on the basis of a marriage which is less than two years old at the time that lawful permanent residence is granted. These immigrants will receive “conditional” permanent residence for a period of two years. However, they are full permanent residents in most respects, as: (a) they are entitled to work in the United States without limitation; (b) they are permitted to travel freely in and out of the country with their Permanent Resident Cards (“green cards”); and (c) the time that they spend as “conditional” permanent residents counts toward the residence and physical presence requirements for naturalization as a U.S. citizen.
However, under IMFA, USCIS may independently terminate a conditional permanent resident’s status prior to the expiration of the two-year conditional period if it finds that: (a) the qualifying marriage was a fraud which was entered into primarily to obtain immigration benefits; (b) that a fee or other compensation was given to induce the petitioner’s filing of the marriage petition on the conditional resident’s behalf; or (c) that the marriage forming the basis of the conditional resident’s status has ended in divorce or annulment.
In order to attain full permanent resident status, a conditional resident and their petitioning spouse must file a joint petition with the USCIS during the ninety (90) day period immediately preceding the second anniversary of the grant of conditional lawful permanent residence. Failure to file a timely petition leads to the automatic termination of conditional residence, and subjects the conditional resident to removal (deportation) from the United States.
Violence Against Women Act (VAWA)
The Violence Against Women Act (VAWA) provides protection to immigrant spouses (both male and female), children, and parents who are victims of abuse (physical abuse or extreme mental cruelty) by their U.S. citizen or permanent resident spouse, parent, or son/daughter. Under VAWA, eligible victims are able to self-petition to obtain lawful permanent resident status.
An abused spouse, or the parent of a child who was abused by their U.S. citizen or lawful permanent resident spouse, must have entered in to the marriage in good faith (i.e. not in order to evade the immigration laws), and must have been legally married to the U.S. citizen or lawful permanent resident when the abuse occurred. However, a self-petition may be filed even if the marriage has been terminated where the abusive spouse’s death occurred within two years prior to filing, or the marriage was terminated by a divorce related to the abuse, within two years prior to filing. An abused spouse whose marriage to the abuser was bigamous may self-petition if they demonstrate that at the time of the marriage they believed the abuser to be legally free to marry, and a marriage ceremony was actually performed.
A self-petitioning child must be unmarried and less than 21 years of age at the time of filing, or, where it is demonstrated that the abuse suffered was a central reason for the filing delay, may file until the age of 25.
An abused parent may self-petition if their abusive son/daughter is a United States citizen, lost or renounced U.S. citizenship within the past two years due to an incident of abuse, or died. The parent must have resided with the abusive son/daughter, be a person of good moral character and eligible to be classified as an Immediate Relative.