Immigrant and Non-immigrant Visas
Immediate relatives and preference categories
There are 10 categories of people who can apply for permanent residence based on family petitions. The first 5 categories are called immediate relatives and the subsequent 5 categories are called preferences. Both immediate relative and preference petitions have a positive and negative aspect to consider. For example, there is an unlimited number of visas are available to immediate relatives. This means that immediate relatives do not have to wait years for a visa to become available and may typically complete their case within one year. However, a limitation to an immediate relative petition is that the spouse and children of an immediate relative typically cannot benefit from that same petition. However, once the immediate relative obtains permanent residence, they can then file a preference petition for those remaining family members. On the other hand, family preference visas can take years to become current, but once the visa is available it will benefit not only the named immigrant but also their spouse and minor children.
You, the intended immigrant, are considered an immediate relative if you fall into any one of the following categories:
- You are the spouse, widow, or widower of a United States Citizen.
- You are under 21 years of age, unmarried, and the child of a United States Citizen.
- You are under 21 years of age, unmarried, the step-child of a United States Citizen, and the marriage between your parent and your step-parent occurred before your 18th
- You are the parent of a United States Citizen who is over 21 years of age.
- You are the step-parent of a United States Citizen who is over 21 years of age and the marriage between you and your spouse occurred before your step-child turned 18.
You, the intended immigrant, are considered a preference relative if you fall into any one of the following categories:
- If you are the unmarried son or daughter of a United States Citizen your petition is called, Family 1st
- If you are the spouse or unmarried child under 21 years of age of a Permanent Resident, your petition is called, Family Preference 2A. Preference.
- If you are over 21 years of age, unmarried, and the son or daughter of a Permanent Resident, your petition is called, Family Preference 2B.
- If you are married and the son or daughter of United States Citizen, your petition is called, Family 3rd
- If you are the brother or sister of a United States Citizen, regardless of whether they are half-siblings or full siblings, your petition is called, Family 4th preference.
As you can see from the definitions above, petition categories are not only defined by the immigration status of the petitioner, but by the age and marital status of the beneficiary as well. Consequently, when any one of the category elements changes, for example the petitioner becomes a citizen or the beneficiary marries, then the preference category changes, or can even be cancelled.
If you are planning to marry a United States citizen, your fiancé may bring you into the United States on a K-1 fiancé visa so that you may have your wedding in the United States. You may also choose to marry in your home country or in another part of the world. If you are already married, your citizen spouse can then bring you into the United States on a K-3 visa.
Regardless of which of the two visas you use to enter the US, you must still pursue adjustment of status, discussed in greater detail below, in order to gain lawful permanent residence.
Adjustment of status
If you were admitted into the United States by an immigration officer, and you have an approved visa petition, and the visa is currently available, you may be able to gain permanent residence from within the United States through a process called adjustment of status. Generally, you must be “in status” in order to “adjust status”. However, exceptions to the rule exist. For example, if your approved visa petition is based on an immediate relative (see immediate relatives and preference categories), you may be “out of status”, and yet still pursue adjustment of status. Another exception to the “in status” requirement is if your visa petition was filed on or before April 30, 2001. This exception is known as 245(i).
The law permits the issuance of an employment authorization document to the beneficiary of a pending petition for adjustment of status. The request for the “work permit” can be filed at the same time as the adjustment of status petition. If you were in status at the time of filing your adjustment, you may also file for a travel document to permit you international travel while the case is pending. If all goes well, adjustment of status cases end with a scheduled interview at a local USCIS office. At the conclusion of the interview, the officer will explain to you what must occur in order for you to receive a decision. If the officer detected any issue of inadmissibility, he or she will inform you of this in writing and identify whether a waiver is authorized.
If you are currently outside of the United States or within the United States but are ineligible for adjustment of status, consular processing may be the way for you to obtain permanent residence. If you have an approved visa petition indicating that you are either abroad or ineligible for adjustment of status, United States Citizenship and Immigration Services will forward your approved petition to the National Visa Center in order to continue service on your case. Once you have submitted all of the necessary documentation and paid all of the related filing fees, the National Visa Center will then schedule your appointment at the appropriate consular post.
At the conclusion of the interview, the officer will explain to you what must occur in order for you to receive a decision. If the officer detected any issue of inadmissibility, he or she will inform you of this in writing and identify whether a waiver is authorized.
Everyone makes mistakes. The consequence of some mistakes is irreversible, yet many more are curable. Sometimes course correction is the simple remedy. Other times, advocacy for an exception or waiver within the law is required. When your mistake is a criminal or immigration violation, it is called an issue of inadmissibility or deportability.
Immigration law is very statute driven. Reading the law is easier when you understand that a law essentially consists of 3 parts. The first part explains the purpose for the law’s creation. The second part defines circumstances that trigger its application. Finally, the law notes exceptions to the rule and whether waiver of its application is authorized. By reading the statute you will better understand whether or not you have an issue of inadmissibility or deportability. If you do have an issue, you may also see if a waiver is authorized.
If you are not a lawful permanent resident and you plead guilty or “nolo contendere”, or have been found guilty for committing a crime, you may need to present such a waiver of inadmissibility when applying for your “green card”. Immigration violations and prior deportations also require a waiver. If you already were a legal permanent resident, you may need to demonstrate an exception to the rule of your deportability if held to answer by the government.
Victims of Crime Visas
Were you encouraged to come to the United States by someone who promised you steady work? Were you later denied pay and intimidated? Did that person keep your passport or warn you against going to the police? If you answered yes, then you are likely a victim of human trafficking. If your victimization was “severe” and comply with any reasonable law enforcement request, a T visa may be for you.
Have you ever been a victim of domestic violence, sexual abuse, or assault? Have you ever been threatened with a weapon, forced to work without pay, or held against your will? If you suffered substantial physical or mental abuse and you were helpful to the police or still can be, then a U visa may be for you.
The U-nonimmigrant visa was created for crime victims. The applicant must have been the victim of a recognized crime that occurred anytime in the United States. The victim must also agree to help the police in the investigation. Helping in a police investigation can be as little as offering your contact number or a statement to the police, but be ready to assist the police if they need additional assistance. The U-nonimmigrant visa is valid for four years, comes with a work permit, and offers a path to lawful permanent residency. The U-nonimmigrant visa also forgives most immigration and criminal violations. In addition, you can include certain family members in your application. If you have been the victim of a crime, and filed a police report, contact us to see if you are eligible for the U-nonimmigrant visa and to evaluate any risks your particular case may have in filing for the U-nonimmigrant visa.
Violence Against Women Act “VAWA”
Have you ever been in an abusive relationship? Has your husband, wife, mother, father, son, or daughter ever been extremely cruel or violent towards you? Is your abusive relative a United States Citizen or permanent resident? If you answered yes, then you may be eligible for a permanent resident card, even if you overstayed your visa or entered the United States illegally.
In 1994, congress enacted the Violence Against Women Act INA Section 204(a), 8 U.S.C. 1154. In essence, you can file to become a permanent resident without the assistance or cooperation of your abusive relative.