New Jersey Family Immigration Attorney

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 depending upon the immigrant's home country, as noted in the visa bulletin. 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); and

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); and

Unmarried child over the age of 21 (second preference B).

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. Note: the dates on the visa bulletin are unpredictable. The dates may move forward or backward or they may not move 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. Citizen 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 adjustment 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 on a daily basis 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 reletive. 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 consist of passport photos of both the U.S. citizen and alien relative, proof of the citizenship or green 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 must be determined on a case-by-case basis, dependant on the circumstances of each case. 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 the package to the USCIS who will issue a fee receipt and issue a biometrics (fingerprint) notice, for the applicant to appear at a USCIS application support center and be fingerprinted. 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 for any reason 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. The process begins with the U.S. Citizens filing with the USCIS an I-130 petition in the US or at the embassy where the spouse & USC resides for at least six (6) months. The same items are required as noted above 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 completion of all required administrative steps, appointments for the medical examination and the interview at the U.S. consulate or embassy abroad will be set. If all of the documentation submitted is complete and the consular officer determines that the applicant is eligible, the immigrant visa is usually issued within several days after the interview and is ordinarily valid for six months from the date of issuance.

Minor unmarried children (under 21) of the beneficiary ordinarily 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

Signed by President Obama in 2009 new legislation 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.

NOTE: 2 year Deadline!!!

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

How are your legal fees determined?

Many people are concerned with the high legal fees that many law firms charge. Our legal fees are determined by considering the amount of time it takes to process and file the applications. In addition, our fees may include our attendance at the interview in NYC, Newark or Cherry Hill, NJ. A service that many firms on the web cannot offer as they are not located in the tri-state area. We provide flat legal fees whenever possible. Of course some matters become more complex than originally anticipated and additional fees may be charged.

Do you have payment plans?

We offer reasonable payment plans. We require a deposit towards the attorney fee and payment of all immigration fees at the start of the case. The balance can be paid in monthly installments but we require the full balance to be paid prior to the adjustment interview.

Isn't it cheaper if I do it myself?

When deciding to represent yourself you must consider what's at stake. Your future in the US is too important to take chances. Many of our clients have tried to do this to save money and thereafter retain us after to fix problems they have created. We prefer to prevent problems not fix them. Fixing problems is often more expensive and sometimes impossible to do.

Immigration is a complex and ever changing body of law. Forms and documents frequently change, fees increase, mailing addresses change, new programs are added and old ones end. We constantly monitor these changes. By retaining a lawyer you ensure that the job is done right and you future will be secure.

How long will the entire process take?

All applications are subject to USCIS processing times. Each application is processed at a different processing center. Click here to determine the processing time for your application.

OTHER IMPORTANT INFORMATION

Battered Spouses and Children

In 1994, Congress passed the Violence against Women's Act (VAWA), which permits aliens battered by their spouses and children of U.S. Citizens and legal permanent residents to petition the USCUIS on their own, rather than relying upon an abusive spouse or parent. The marriage must have been entered into in good faith; the alien must have been the subject of abuse while residing with the U.S. Citizen or Lawful permanent resident; have current U.S. residence or be abroad and subject to abuse while in the United States, or abused by a U.S. government employee or member of the services while abroad; the alien must be a person of good moral character. The alien can be divorced if the abuse led to or caused the divorce. Note the provisions also apply to abused children who are unmarried and under 21 when the petition is filed and approved. For more information click here.

Definition of Child

A child is unmarried and one who was born in wedlock or was legitimized (parents married) before age 18. Children born out of wedlock may obtain immigration benefits from the natural mother or the natural father, as long as they have established a "bona-fide" parent child relationship before age 21. Step-children are eligible to immigrate if the child was under 18 at the time of the marriage and the relationship can continue after the death of or divorce from the natural parent provided there has been an active parental interest. Adopted children are eligible to immigrate if adopted before the age of 16, and if they have been in the legal custody and resided with the adoptive parent for at least two years. Orphans can be petitioned if less than 16 and if both parents have died disappeared or abandoned the child. If there is a sole or surviving parent, he or she must be incapable of providing support for the child and have irrevocably released the child for adoption.

Affidavit of Support

All U.S. citizens or legal permanent residents who petition to have their family members admitted to the United States as immediate relatives or through the various family-based preferences must act as sponsors and provide an Affidavit of Support for the alien. The affidavit is required to assure the USCIS that the alien will not become a public charge. To qualify as a sponsor, the individual must be 18 or older, a USC or LPR of the United States, and live or hold domicile in the United States. This document states that the petitioner can support the alien at 125% of the federal poverty income level. This amount varies according to family size and location. The USCIS provides a worksheet to assist in the calculation. In the event that the primary sponsor does not earn enough income, a co-sponsor may be used. The co-sponsor must meet the above requirements but does not need to be related to the alien. In the event of the death of the sponsor, a substitute Affidavit of Support may be submitted from another close relative only. New USCIS regulations now require a showing of sufficient income for the most recent tax year. If the last year is insufficient, the office can examine other years.

The affidavit is an enforceable contract that remains in effect until the alien becomes a citizen or has worked for more that 40 qualifying quarters as defined by the Social Security Act. The sponsor and/or co-sponsor can be required to reimburse any state or federal agency for most public benefits that the alien receives.

Documents for a Visa Application and Adjustment of Status Applications

All applicants must submit original documents such as: passports, translated birth certificates, marriage certificates, divorce certificates, police certificates (for Consulate cases only), last tax return from the petitioner or the co-sponsor as noted above, and other evidence supporting the validity of the marriage relationship, such as wedding and other occasion photos, joint bank statements, leases, joint insurance certificates and joint bills listing both husband and wife.

Medical Examinations

Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. A doctor designated by the consular officer will conduct the examination. Costs for such examinations must be borne by the applicant. If adjusting status from within the United States check the USCIS Civil Surgeons list.