Family Based Cases in New Jersey

New Jersey Family Immigration Visas

Family reunification has historically been the principal policy underlying U.S. immigration law. The Immigration and Nationality Act allows U.S. Citizens or Lawful Permanent Residents (green card holders) to sponsor the immigration of foreigners to the United States based upon family relationships. United States Citizenship and Immigration Services (USCIS) will issue a visa to a qualified family member after they approve an I-130 petition filed by certain family members. After the petition is approved, the visa may be issued in as little as 90 days or as long as 25 years, depending upon which of the below categories apply and the immigrant's home country. However, not all family relationships serve as a basis to apply for Lawful Permanent Resident status.

A U.S. citizen may file a petition on behalf of his/her:

Husband, wife, or child under the age of 21 (immediate relative)
A Parent if the U.S. citizen is at least 21 years of age (immediate relative)
An unmarried child over the age of 21 and their children (first preference)
Married child of any age and their children (third preference)
Brother or sister if the U.S. citizen is at least 21 years old and their spouses and children (fourth preference)

A Lawful Permanent Resident can file the petition on behalf of his/her:

Husband or wife (second preference A)
Unmarried children under the age of 21 (second preference A)
Unmarried child over the age of 21 (second preference B).

If you wish to sponsor a family member that wants to immigrate to the US, contact a New Jersey immigration lawyer for additional information. The immigration sponsorship process has many steps and procedures that a qualified attorney can discuss in detail.

Preference Categories Explained Aliens other than immediate relatives fall into one of the four limited family-based preference categories. A visa will not be immediately available as there are numerical limits on the number of visas issued each year. More aliens want visas than are currently available. Therefore, there may be a long waiting period for a visa to be issued. When the application is received by the USCIS, they will note the filing date (this is called the "priority date). The applicant must wait for the priority date to be current in the visa bulletin.

USCIS publishes a listing of current priority dates in the visa bulletin. If the application was filed on or before the date listed in the visa bulletin, then the priority date is current and the USCIS should contact the applicant. If USCIS does not contact the applicant within several months, then an inquiry should be sent to the USCIS. The dates on the visa bulletin are unpredictable, and may move forward or backward or not at all. A new visa bulletin is issued by the U.S. State Department on the first day of each month and it lists the most current priority dates.

The immediate relative category, as noted above, has no limit on the number of visas issued each year; there is no wait other than the time it takes the USCIS to process the Visa. Under Section 245(i), a U.S. c itizen may petition for an immediate relative and that relative may adjust their status (receive a green card) here in the United States even if that relative has fallen out of status by overstaying certain non-immigrant visas. However, the immediate relative must have entered the United States legally.

If the Relative is in the US The adju stment process requires the US citizen to submit a petition to the USCIS to prove the relationship exists. In order to process from within the US, the alien must be in the first preference as noted above or have "grandfathering" from a prior petition submitted on or before 4/30/01. The alien must also show that they are not inadmissible due to the type of visa they originally entered the US on , or due to certain crimes or other immigration violations from the past.

A common issue encountered is the requirement that immediate relatives prove that they made a valid entry in to the US rather than entering without inspection. Immediate relatives who were inspected upon entry and overstayed are generally allowed to adjust status through their US citizen relative. Those who entered without inspection, or who are in other preference categories will generally be required to leave the US to adjust their status (unless "grandfathered" by a prior petition). This can be a serious problem due to the three (3) and ten (10) year bars to reentry. Certain exceptions are available for those who filed a labor certifications or an immigrant petition before 4/31/01.

The Application Process The adjustment process requires the US citizen and alien spouse to submit the following forms:

Form I-130, Petition for Alien Relative and when approved a Form I-485, Application to Register Permanent Residence or Adjust Status
Form G-325 Biographical Data forms for both the husband and the wife
Form I-864, Affidavit of Support, from the petitioning U.S. spouse
Form I-765, Application for Employment Authorization (which permits the applicant to work in the U.S. 90 days after the I-485 petition is filed and while the adjustment application is pending
Form I-131, Application for Advance Parole Travel Document (which permits the applicant to travel outside of the U.S. while the adjustment application is pending assuming the alien has not been unlawfully present in the US for more than 180 days). Travel without advanced parole can lead to the denial of the adjustment of status petition.

Supporting Documents The application also needs supporting documentation that consists of passport photos of both the U.S. citizen and alien relative, proof of the citizenship or gre en card status of the U.S. citizen petitioner, a copy of the marriage and/or birth certificates, copies of documents evidencing termination of any previous marriages of either the U.S. citizen or foreign spouse, tax returns and the appropriate filing fees for the USCIS.

Other documents are required to prove the marriage is bonafide or the family relationship exists and willbe determined on a case-by-case basis. These will be discussed in detail at the time our office is retained to process the case.

Interview Stage Once the package is completed our office will submit it to the USCIS who will issue a fee receipt and biometrics (fingerprint) notice which directs the applicant to appear at a USCIS applicatio n support center for fingerprinting. Several months later we will receive a notice for the parties to attend an interview with an immigration officer, who will determine if the relationship is genuine and whether the alien is ineligible to adjust status to permanent residence.

If the Spouse or Relative is Outside the US The process is similar except the foreign spouse or relative remains in his/her country and enters the US with a green card. Th e process begins with the U.S. citizen filing an I-130 petition with the USCIS. The form is filed in the US or at the embassy where the spouse & USC has resided for at least six (6) months. The same items as noted above are required to prove that the marriage is bonafide or that the relationship exists.

Upon approval, the beneficiary will receive a package from the National Visa Center (NVC). The NVC issues fee bills for the Immigrant Visa (Form DS-230) and Affidavit of Support (Form I-864) fees. Upon payment, the NVC will begin processing the immigrant visa by providing a packet of instructions (packet 3) to the beneficiary and his/her lawyer.

It ordinarily includes the form DS-230 Part I (Application for Immigrant Visa and Alien Registration), the form DS-2002 (Instructions for Immigrant Visa Applicants), the instructions for the Affidavit of Support (I-864), the photo instructions, and the information sheet on vaccination requirements. Upon receipt of the notification that the beneficiary is in possession of all required documents and all required administrative steps have been completed , appointments for the medical examination and the interview at the U.S. consulate or embassy abroad will be set. If all of the submitted documentation is complete, and the consular officer determines that the applicant is eligible, the immigrant visa is usually issued within several days after the interview. It is ordinarily valid for six mont hs from the date of issuance. Minor unmarried children (under 21) of the beneficiary can usually may accompany their parent and immigrate to the United States, but frequently the U.S. citizen spouse must file a separate petition for their foreign step-child.

Widows and Widowers of U.S. Citizens are Immediate Relatives New legislation signed by President Obama in 2009 effectively eliminates what was known as the "Widow Penalty." Now, a foreign national spouse is eligible to seek U.S. permanent residence (by completing Form I-360), no matter how long they were married at the time of the U.S. citizen's death, and regardless of whether their spouse ever initiated the U.S. immigration process or obtained approval of an I-130 petition. The law applies retroactively as well as to surviving spouses who were overseas at the time of their U.S. citizen spouse's death. Thus spouses of deceased U.S. citizens who were ineligible due to the short term of the marriage can now benefit from U.S. immigration benefits, including foreign spouses who have never set foot into the U.S. - no matter how long ago they were widowed.

Foreign nationals whose U.S. citizen spouses died before the enactment of the new law must apply for U.S. immigration benefits within two years of the enactment date before October 28, 2011. Otherwise, foreign nationals whose U.S. citizen spouse dies following the enactment of this law, must file for U.S. residence within two years of their spouse's death

New Jersey Immigration Lawyer

The Law Offices of Lloyd E. Bennett, Esq., P.C. has over 22 years of experience helping individuals resolve their immigration issues. Our legal team will conduct an in-depth interview so that we fully understand you needs, and create a plan to help you achieve your immigration goals.

Contact a New Jersey immigration attorney at our firm to find out more information on how to sponsor a family member that wants to immigrate to the US.