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Family Based Visa Applications and Adjustment of Status
Murphy Law Firm immigration lawyers handle all aspects of family immigration, both seemingly simple cases and those that are more complex.
The evolving international economy, natural disasters and armed conflict have resulted in the relocation of families to the United States for work, education, and many other reasons. Due to difficult U.S. immigration laws, as well as economic and social pressures, families are often separated with the hope of being reunited in the future. As family circumstances change, opportunities arise that enable family unification. These opportunities include bringing parents, siblings or elder children into the U.S., fiance visas, marriage to a U.S. citizen, adjustment of status, removing conditions on a marriage-based “green card,” naturalization, and other immigration plans tailored to meet your individual needs.
Our size, reputation and experience allow us to offer clients all the advantages of working with a large-city firm without big city billing rates.
Included for your reference below are brief descriptions of the visas available for family and marriage-based immigration to the United States. Please contact the immigration attorneys at the Murphy Law Firm for additional information and to discuss the best options for you and your family.
Family/Marriage-Based Visa Types
K-1 Visas (Fiancé(e) Visa)
If your fiancé(e) is not a U.S. citizen, is located overseas and you plan to get married in the United States, then you must file an I-129 petition with U.S. Citizenship & Immigration Services (USCIS). After the petition is approved, your fiancé(e) can obtain a K-1 visa at the U.S. Embassy or consulate abroad before he/she may enter the U.S. Once your foreign national fiancé enters the United States, the marriage must take place within 90 days. If the marriage does not take place within 90 days or if your fiancé(e) marries someone other than you, he/she will be required to leave the U.S. and immigrate through a process called Consular Processing. Please note that a fiancé(e) may not obtain an extension of the 90 day original nonimmigrant admission, so it is vital to marry within 90 days of admission into the U.S.
Once you are married, your fiancé(e) should apply to become a permanent resident. If he/she does not intend to become a permanent resident after your marriage, he/she must leave the U.S. within the original 90 day admission. When your spouse’s permanent resident status is approved, it will be a conditional permanent residence status that is only valid for two years. Before the two years expires, you must file a joint petition to remove the conditions on the resident status. Failure to file the application to remove conditions will result in the spouse losing their legal U.S. resident status.
If your fiancé(e)'s has unmarried children who are under the age of 21, you may also apply to bring them to the United States. The children of the fiancé(e) are deemed K-2 visa holders and must also apply for permanent residence once the marriage takes place.
K-3/K-4 Visas (Spouse or Child of U.S. Citizen)
The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category within the immigration law that allows the spouse or child of a U.S. Citizen to be admitted to the United States in a nonimmigrant category, and enables them to complete processing for permanent residence while in the U.S. The LIFE Act grants permission for employment.This process generally allows a spouse to enter the United States faster than marriage-based Consular Processing.
The requirements for a K-3 visa are as follows:
- A valid marriage with a citizen of the United States has taken place;
- A relative petition (Form I-130) has filed by the U.S. citizen spouse on his/her behalf;
- The Spouse or Child of a U.S. Citizen seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status; and
- The Spouse or Child of a U.S. Citizen has an approved Form I-129F.
The K-3 petition is forwarded to the American consulate where the individual wishes to apply for the K-3/K-4 visa. The consulate must be in the country in which the marriage to the U.S. citizen took place, as long as the United States has a consulate which issues immigrant visas in that country. If the marriage took place in the United States, the designated consulate is based on the current residence of the foreign national spouse.
Similar to K-1 visas, the foreign spouse's unmarried children under age 21 can be included in the parent's petition and receive K-4 visas. However, if a child is 18 years of age or older at the time of marriage then, although the child can receive a K-4 visa and enter the United States, that child cannot obtain a green card. The child's K-4 visa will simply expire after two years or when the child reaches the age of 21, whichever occurs first. At that time the child will have to leave the United States, or pursue other immigration options. Accordingly, you and your spouse should determine other visa options for the child as soon as possible after the child’s entry into the U.S.
V Visas (relatives)
The LIFE Act also established a new nonimmigrant category within the immigration law that allows the spouse or child of a U.S. lawful permanent resident to live and work in the United States until they are able to apply for lawful permanent residence status (adjusting status) or for an immigrant visa, instead of having to wait outside the United States as the law previously required. This new nonimmigrant category is the V visa.
A person may apply at a U.S. consulate abroad for a V-1 or V-2 visa or seek V-1 or V-2 nonimmigrant status while in the United States, if that person:
- is lawfully married to a lawful permanent resident of the United States (V-1), or is the unmarried child (under the age of 21) of a lawful permanent resident (V-2); and
- is the principal beneficiary of a relative petition (Form I-130) that was filed by the lawful permanent resident spouse/parent on or before December 21, 2000; and
- has been waiting at least three years since the petition was filed for lawful permanent resident status because the petition is still pending, or the petition has been approved but an immigrant visa is not yet available, or there is a pending application to adjust status or an application for an immigrant visa.
The derivative child of a V-1 or V-2 nonimmigrant is eligible for a V-3 visa or for V-3 status. V-1, V-2 or V-3 visa holders are eligible to apply for a work permit by filing an Application for Employment Authorization (I-765).
Legal Permanent Residency by Family Relationship
A foreign national can obtain legal permanent resident status in the U.S. by being the beneficiary of a petition filed on their behalf by a qualifying relative. While many detailed rules apply, generally the relationships of Husband/Wife, Parent/Child, and Brother/Sister can create the basis for a family relative petition. The petitioner must be a U.S. citizen or a Legal Permanent Resident in order to apply for their relative.
Depending upon the nature of the relationship, the nationality of the person seeking legal permanent residency, and the past or present immigration status of the petitioner, there are waiting lists that will impact how long the foreign national must wait before immigrating to the U.S.
Although some of these waiting lists can force people to wait years based on their family relationships, Congress created several categories of family visas to allow foreign nationals to come to the U.S. without these significant delays. These additional visa options, such as the K and V visas, were discussed previously.
Adjustment of Status to Legal Permanent Resident (Green Card)
Originally, the Immigration and Nationality Laws of the United States provided that foreign nationals may only acquire their immigrant visas outside of the U.S. at a U.S. Embassy or Consulate. However, in 1952 Congress began allowing qualifying individuals to adjust their status to that of a permanent resident without leaving the United States. "Adjustment of Status" is a legal term that means a person changes from one visa type or immigration status to that of a legal permanent resident (green card holder) without departing the United States.
Who Is Eligible for Adjustment of Status?:
The Adjustment of Status application (Form I-485) is filed by a foreign national who is physically present in the United States and who decides to adjust his or her non-immigrant status to permanent resident status. Once the application is approved, you are granted permanent resident status in the United States without having to process through a U.S. Consulate abroad. Two additional benefits of the Adjustment of Status Process are that you may also apply for employment authorization (work card) and advance parole (travel document) at the same time as the Adjustment of Status application. The employment authorization and advance parole enable you to work and travel while the application is pending. However, those who have overstayed a prior visa by six months or more should not leave the United States prior to receiving the adjustment of status, or you will be faced with a bar to reentry.
The steps for adjustment of status are as follows:
- USCIS must approve an immigrant petition that has been submitted for you, which is usually filed by an employer (Form I-140) or relative (Form I-130).
- You must obtain a current immigrant visa number through the State Department, even if you are already in the United States. This is impacted by the waiting lists discussed above.
- If you already are in the United States, you may apply for an adjustment to Lawful Permanent Resident. (If you are outside the United States, you will be notified to go to the local U.S. Consulate to complete the processing for an immigrant visa.)
You may apply to adjust your status:
- Based on an approved I-130 or I-140 immigrant petition;
- Based on a special immigrant juvenile or special immigrant military petition which, if approved, would make an immigrant visa number immediately available to you.
- Based on being a derivative (spouse or child) of another adjustment applicant (principal) at the time that person files to adjust status, or at the time a person is granted permanent resident status in an immigrant category that allows derivative status for spouses and children.
- Based on admission as the fiancé(e) of a U.S. citizen and subsequent marriage to that citizen. You may apply to adjust status if you were admitted to the United States as the K-1 fiancé(e) of a U.S. citizen and you married that citizen within 90 days of your entry. You may not adjust your status if you marry a U.S. citizen other than the person who petitioned for your fiancé(e) visa. If you were admitted as the K-2 child of such a fiancé(e), you may apply based on your parent's adjustment application.
- Based on admission as the K3 spouse or dependent of a U.S citizen. This is similar to the K-1 visa petition, but is used for a husband or wife who is awaiting their immigrant visa overseas. Rather than being subject the immigrant visa waiting list overseas, they can come to the U.S. on the K3 visa and apply to adjust status in the United States when a visa is available.
- Based on asylum status. You may apply to adjust status if you have been granted asylum in the United States, as long as you have been physically present in the country for one year after the grant of asylum. You must still qualify as an asylee or as the spouse or child of a refugee.
- Based on Cuban citizenship or nationality:You may apply to adjust status if you are native or citizen of Cuba who was admitted or paroled into the United States after January 1, 1959, and have been physically present in the United States for at least one year. You may also qualify if you are the spouse or unmarried child of a Cuban described above, and regardless of your nationality, you were admitted or paroled into the U.S. after January 1, 1959, and have been physically present in the U.S. for at least one year.
- Based on continuous residence since December 31, 1971.
- Based on changing the date your permanent residence began. If you were granted permanent residence prior to November 6, 1966 and are a native or citizen of Cuba, his or her spouse or unmarried minor child, you may petition to change the date your lawful permanent residence began to your date of arrival in the U.S. or May 2, 1964, whichever is later.
Who is Ineligible for Adjustment of Status?:
You are not eligible for adjustment of status if any of the following apply to you:
- You entered the U.S. in transit without a visa.
- You entered the U.S. as a nonimmigrant crewman.
- You were not admitted or paroled following inspection by an immigration officer (entered without inspection EWI).
- Your authorized stay expired before you filed this application.
- You were employed in the U.S. prior to filing this application, without USCIS authorization.
- You otherwise failed to maintain your nonimmigrant status, other than through no fault of your own or technical reasons.
- You are an international organization employee or a derivative family member of same.
- You are a foreign medical graduate in the U.S. on a J-1 visa and have not obtained a waiver of the two-year home residency requirement.
- You are or were a J-1 or J-2 exchange visitor, are subject to the two-year foreign residence requirement and have not complied with or been granted a waiver of the requirement.
- You are in A, E or G nonimmigrant status, or have an occupation which would allow you to have this status, unless you complete Form I-508 (I-508F for French nationals) to wave diplomatic rights, privileges and immunities. In addition, if you are in A or G nonimmigrant status, you must also submit a complete Form I-566 to be eligible for adjustment of status.
- You were admitted to the U.S. as a visitor under the Visa Waiver Pilot Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old).
- You were admitted as a K-1 fiancé(e) but did not marry the U.S. citizen who filed the petition for you, or were admitted as the K-2 child of a fiancé(e) and your parent did not marry the U.S. citizen who filed the petition.
- If you were convicted of a crime, unless you apply for and receive a waiver.
- If you have worked illegally in the United States (without proper employment authorization), unless you are the immediate relative (spouse, parent, or child under 21) of a U.S. citizen.
