There are some circumstances under which U.S. immigration law allows an immigrant to obtain a green card (U.S. lawful permanent residence) even if the U.S. petitioner/sponsor dies before completing the application process. Exactly what the possibilities are, however, depends on:
(Also see I.N.A. § 201(b)(2)(A)(i), I.N.A. § 213(a)(f)(5), I.N.A. § 204(l).)
If you have already started the process of petitioning for your immigrating relative, you would have filed a Petition for Alien Relative, or Form I-130, with U.S. Citizenship and Immigration Services (USCIS). If you were to pass away before doing that, the case would in most cases go nowhere.
But even if this I-130 was approved by USCIS; in other words, after you had gotten a receipt notice back but nothing more, it would in most cases be revoked after your death, if your family member had not yet completed the next phase of the process (filing for a green card either through adjustment of status in the U.S., or consular processing overseas).
Nevertheless, there are exceptions and alternative ways forward, as follows:
We'll discuss these options next.
The widow or widower of a U.S. citizen (and unmarried children under 21) can file for immigrant benefits on the basis of the marriage. The widowed immigrant is eligible to apply for a green card within two years of the spouse's death, if the couple married in good faith (not as a fraud to get the immigrant a green card), they were not legally separated at the time of the death, and the immigrant has not remarried.
The exact procedures for this depend upon whether the U.S. citizen spouse got as far as filing an I-130 petition on the immigrant's behalf before the death. If so, the immigrant can proceed with the green card application, but will need to notify USCIS of the U.S. citizen spouse's death. Then USCIS will, if all eligibility requirements are met, convert the I-130 to an I-360 petition, described below.
If the U.S. citizen did not get as far as filing an I-130 petition, the immigrant will need to file a self-petition on USCIS Form I-360; which, if the immigrant is in the U.S. and eligible to file for adjustment of status, can be done concurrently with the Form I-485 and other adjustment of status paperwork (minus the Form I-864 Affidavit of Support usually required in marriage-based cases but not required of widow(er)s of U.S. citizens; an I-864W would need to be submitted instead).
An immigrant who is overseas, or not eligible to adjust status in the U.S., would use the procedure known as consular processing. They would have to await USCIS approval of the Form I-360 before moving forward.
If filing an I-360, the immigrant will need to include a copy of the couple's marriage certificate, proof of the spouse's U.S. citizenship, and a copy of the death certificate, as well as the filing fee. See Filling Out USCIS Form I-360 Self Petition as a Widow(er) of a U.S. Citizen for details.
Even if the I-130 was already filed, the immigrant must notify USCIS within two years of the spouse's death and include the above documents, except for the petition form and filing fee.
Assuming the immigrating relative is not your spouse, or you're not a U.S. citizen, their best possible remedy upon your death would be to pursue something called "humanitarian reinstatement" of the already-approved I-130. But this is possible only if the immigrant can find a substitute financial sponsor, so it would be worth looking into this matter first.
As part of the green card application, an immigrant's family petitioner must complete Form I-864, Affidavit of Support Under Section 213A of the Act, as well as provide financial documentation, such as pay statements, tax returns, and a letter from an employer.
You might have already filled out this form. If so, you perhaps remember that you had to show that your income/asset levels met at least 125% of the U.S. Poverty Guidelines for the number of people in your household plus the immigrant(s), as shown on Form I-864P. By signing a Form I-864 affidavit, the U.S. sponsor promises to financially support their immigrant relatives in the United States, and demonstrates that the immigrants will not become a burden to the U.S. government.
Financial sponsorship is an important aspect of serving as an immigrant's petitioner. Thus if you die, USCIS would expect your immigrant relative to come up with a substitute sponsor to take on this role, in order for the green card application to continue. (See I.N.A. § 213A(f)(5).) To qualify as a substitute sponsor, the person must be at least 18 years of age, a U.S. citizen or lawful permanent resident, and related to the immigrant as either a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, or legal guardian.
The substitute sponsor would be required to meet the same income requirements (from the Poverty Guidelines) as the original sponsor, and provide the same types of financial documentation. Further, the substitute sponsor would need to indicate and provide evidence of being related to the immigrant relative.
The substitute sponsor will be financially obligated, if needed, to the immigrant relative until the immigrant becomes a U.S. citizen, dies, or departs the U.S. permanently.
Once your immigrant relative has found a substitute sponsor and that person has completed Form I-864 and provided the needed documentation, the immigrant relative would need to write a letter to USCIS stating a wish to have the case reinstated after it was revoked due to death of the initial sponsor. The letter will need to provide basic information including the prospective immigrant's and deceased U.S. petitioner’s name, and Alien Registration Numbers (A-Numbers) if any, as well as the I-130 receipt number.
Along with the letter, the intending immigrant should attach:
The application for reinstatement should be mailed to the office where your I-130 petition was filed, which will be indicated on the bottom of your I-130 approval notice. USCIS will add the application for reinstatement to your I-130 petition. There is no fee required for this request.
If an immigrant relative's substitute sponsor cannot meet the minimum income requirements, the person might be able to team up with a joint sponsor. The joint sponsor must be at least 18 years of age, living in the U.S., and willing to be jointly liable for the immigrant's financial support.
A joint sponsor, unlike a substitute sponsor, does not have to be related to the immigrant. The joint sponsor must complete Form I-864 as well, provide the same documentation as above, and be able to meet the income requirements per the Poverty Guidelines.
A portion of the Immigration and Nationality Act (I.N.A.) numbered § 204(l) lets would-be immigrating family members of U.S. citizens and permanent residents
204(l) request that their cases go forward even if the I-130 hadn't yet been approved by USCIS (was "pending"). The immigrants would need to show that they were residing in the United States at the time of the death, and continue to do so (though a brief trip won't destroy eligibility).
Details are on the USCIS website, including specific language the family member should use depending on the details of how far along your immigration application was when the death occurred. However, since the agency hasn't created an actual form for this, and sometimes gets it confused with a humanitarian reinstatement request and then denies it (with no appeal), your best bet is truly to hire an attorney.
In order to avoid having to meet the requirements for reinstatement, it might help the immigrant to have more than one petitioner file an I-130 petition on their behalf. For instance, both U.S. citizen parents can petition for their child. This provides a backup petition in case of a petitioner's death. There is no legal barrier to having more than one petition filed for the same foreign national.
Perhaps you have already hired an immigration attorney, in which case that attorney could assist with the consequences of any changes in the case, such as a petitioner's death. If not, this sad complication would be a good reason to bring in an expert attorney, to evaluate the situation, assist with the paperwork, and draft any legal arguments that would help get the case approved.
]]>Unfortunately, the answer is “no,” as discussed in this article. But read to the end for alternative strategies.
The issue arises from a technical (and often illogical) aspect of immigration law, having to do with which immigrating relatives can bring their own “derivatives” (spouse and minor children) to the United States on the same application.
In cases of immediate-relative relationships (spouse, parents, and unmarried, minor children of U.S. citizens), derivatives are never allowed. U.S. citizens must be able to directly file a visa petition (Form I-130) for every person that they wish to help immigrate.
In order to do that, however, a citizen’s relationship with the “beneficiary” of the petition must be recognized as a qualifying one under U.S. immigration law. The law simply does not recognize grandchildren of U.S. citizens as having a qualifying relationship for I-130 filing and green-card eligibility purposes.
As mentioned above, there are strategies that might help a U.S. citizen's daughter avoid separation from her own child, though it means her path to a green card will take longer.
The first is for the daughter to wait until she is 21 or over to immigrate. In that case she will not be an “immediate relative,” but instead be classified in the “family first preference” (F1) visa category. Preference relatives are legally allowed to bring derivatives (spouse and unmarried minor children) with them to the United States. The down side to this strategy is that there is an annual limit on F1 visas, as a result of which a waiting list has developed, and it could take several years after you file the I-130 for your daughter to be able to move forward with a green card application. You’d need a lawyer’s help to work out the details of timing this correctly.
Another, similar possibility is to wait until your daughter gets married, in which case she would be classified under the “family third preference” (F3) visa category. Because this, too, is not an “immediate relative” category, she would be able to bring her spouse and child. But the waiting list in this category tends to be even longer than in F1, making it a less-than-ideal strategy for most.
These are complex issues and suggested strategies, so again, your best bet would truly be to consult with an immigration attorney for a full analysis and for help in properly preparing and filing the paperwork, as well as working out how best to time the whole immigration process.
]]>Fortunately, you need not choose only one U.S. family member to start the immigration process (leading eventually to a green card) for you. Any or all of a person’s U.S. relatives can serve as “petitioner,” with the idea that if one application moves fastest, you'd drop the remaining ones.
Although initially expensive, this strategy can serve as a good backup if things don't go as planned. For example, in the midst of the COVID-19 pandemic, U.S. petitioners became all too aware of how one untimely death could derail the immigration hopes of a family member being sponsored. We'll get into the details of using this strategy below.
(Relatedly, you might be interested to see How Much It Costs to Get a Green Card by Consular Processing and How Much It Costs to Get a Green Card by Adjustment of Status.)
Only a limited number of family relationships potentially qualify a foreign-born person to receive a green card to immigrate to the United States. These are described in Green Card Through a U.S. Family Member: Who Qualifies.
The U.S. citizen or lawful permanent resident family member who starts the process on behalf of the intending immigrant is called the “petitioner.” That person must file a so-called “visa petition” on the intending immigrant’s or “beneficiary’s” behalf, using Form I-130, issued by U.S. Citizenship and Immigration Services or USCIS.
Some people call the petitioner a “sponsor.” However, in legal terminology, “sponsor” actually refers to the person providing financial sponsorship to the immigrant. It's true that the petitioner must, as part of the immigration process, be the first and primary financial sponsor. However, other people in the U.S. might be additionally able to serve as an immigrant's financial sponsor, as is common when the primary sponsor's income is relatively low.
Different family relationships may lead to a U.S. green card at different rates of speed. The spouse, parent, or unmarried child of a U.S. citizen, for example, is considered an “immediate relative.” No annual limits apply in the immediate relative category, so the beneficiary’s application for a green card will go just as quickly as the U.S. government’s bureaucracy and application requirements allow.
All other family relationships that qualify a foreign national to immigrate, however, fall into the “preference” categories, in which the law limits the numbers of immigrant visas or green cards given out each year. Due to high demand for U.S. green cards, the upper limit is often reached, potentially leading to waits of many years in each category. The worst category is sibling (brother or sister) of a U.S. citizen, in which the wait for an available visa is, on average, at least ten years, and often many more.
Therefore, it’s worth figuring out which family relationship will get the foreign national a green card the fastest, and making sure that the appropriate petitioner files (if willing) an I-130 on the immigrant’s behalf. You can do this by looking at the monthly Visa Bulletin published by the U.S. State Department, which lists both the preference categories and the “priority dates” (I-130 submission dates) of people who have become eligible for visas in that month.
The farther back in time the listed priority dates, the longer the wait. For example, by looking at the Visa Bulletin, you might notice that a married person with U.S. citizen parents as well as siblings will get a green card slightly faster through the parents, because category F3 is moving about a year ahead of category F4 (for applicants from most countries, that is; people from Mexico and the Philippines wait much longer than others, due to high demand from those countries).
On the other hand, you might see a "C" in some categories, meaning there's no wait at all. This has sometimes been true of category 2A in recent years (though the normal wait is between two and five years for 2As).
If one of the potential petitioners is the intending immigrant’s immediate relative, so that the entire application process will go fairly quickly, you could simply file that one application, and assume all will go well. (You’ll find out fairly soon, in any case.)
In any other situation, however, it can be well worth having more than one petitioner file an I-130 on the immigrant’s behalf. Why? Because circumstances can change with the passage of time. A petitioner might die or lose interest in helping the immigrant.
If the petitioner dies before the immigrant gets the green card, some possible remedies exist, including something called "humanitarian reinstatement." There's also a law assisting surviving spouses of U.S. citizens described in Can Immigrant Still Get Green Card After U.S. Petitioner/Sponsor's Death? Nevertheless, such remedies might, depending on the facts of the situation, not work for you.
The bottom line: You have nothing to lose except the filing fee by having more than one U.S. petitioner file an I-130 on behalf of an intending immigrant, and doing so might save a great deal of time and heartache.
If you have questions about which family members can and should petition for you to immigrate, or would like assistance preparing the paperwork and monitoring the application through the long process of approval, consult an experienced immigration attorney.
The answer depends on how far along you and your relative are in the immigration process, as detailed below.
The first step in petitioning for a family member to come to the U.S. as a lawful permanent resident is to fill out Form I-130 (Petition for Alien Relative), created by U.S. Citizenship and Immigration Services (USCIS).
If you have already sent in Form I-130 to USCIS but the case hasn't gone further, you can “withdraw” your petition. To do so, write a letter to the USCIS office that is processing your petition. Be aware that this might be a different office from where you first filed the I-130. The receipt notice you got from USCIS should give you the office address, and you could doublecheck with USCIS's Contact Center.
The letter should include:
A few weeks after mailing, you should receive a letter from USCIS acknowledging that you've withdrawn the petition. If you do not receive such an acknowledgment, consider having a qualified attorney help you make sure that USCIS has “cancelled” the petition.
Even after USCIS has approved the I-130 petition for your relative, you can still withdraw it if you act quickly, ideally before either:
In other words, you'll want to interrupt the process before your family member receives approval for a green card. Start by sending the same sort of letter described above to the USCIS office that approved your I-130 petition. Then also sent a a signed written statement to the National Visa Center (NVC), an intermediary between USCIS and overseas U.S. consulates, using its Public Inquiry Form.
If your relative already has either received an immigrant visa (from an overseas U.S. consulate) and traveled to the United States with it (thus becoming a U.S. lawful permanent resident upon entry) or received USCIS approval for a U.S. green card (after submitting an adjustment of status application), your options are more limited.
You can write a letter to USCIS requesting that the petition be rescinded. But the agency will probably not respond unless you are telling it about some sort of fraud. If fraud is involved, USCIS will want to know when you found out about the fraud and whether you were involved in it.
For example, if you allege that the immigrant married you for a green card rather than for love, USCIS might want to make sure that you weren't actually a willing, perhaps paid participant in this scam. (Penalties for marriage fraud can be severe.)
Proceed with caution and talk to an immigration attorney before taking action.
Telling USCIS why you changed your mind can be risky for two reasons. First, there can be penalties, including jail time and fines, if you lied on the I-130 petition. Second, USCIS might use information that you share with it to deny a petition that you file in the future for the same or a different relative.
But what if you withdraw your petition for reasons unrelated to fraud or misrepresentation? Let's say, for example, that your relationship has changed or you can't afford to sponsor your relative anymore. In such situations, you should feel free to ask USCIS to cancel the petition. What's more, you shouldn't have any problems if you decide to file another family-based immigration petition in the future.
]]>This article will alert you to ways the process can either speed up or bog down as a result, and how, if possible, to avoid the latter.
Let’s assume that you have a green card now (are a U.S. lawful permanent resident). U.S. immigration law lets you apply for immigrant visas (green cards) on behalf of your foreign-born spouse, your children under the age of 21 (as "derivatives" named in the spouse's visa petition), and your unmarried children over the age of 21 (by filing separate visa petitions for them). These applications fall into two categories: “F2A” for spouses and children under 21, and “F2B” for unmarried children over the age of 21.
As alluded to, you start the immigration process for any of these family members by filing a visa petition, using USCIS Form I-130. After U.S. Citizenship and Immigration Services (USCIS) approves an I-130, the family members ("beneficiaries") will be placed onto a waiting list. They are in the so-called “family preference” categories of the visa system, as opposed to being “immediate relatives” of a U.S. citizen. Only limited numbers of visas are allotted per year to preference relatives.
Family preference relatives face annual limits on visas, and thus potentially years-long waits, depending on demand. (How Long Is the Wait for Your Priority Date to Become Current provides details.)
When a permanent resident files an I-130 petition for a spouse, they don't have to submit (and pay filing fees for) separate I-130 petitions for their minor children. Simply naming these children on the immigrating spouse's I-130 is enough to launch the children into the immigration process (though later in the process, children will need to submit application forms of their own).
But when a petitioner naturalizes, their children can no longer ride as "derivatives" on the parent's I-130. They still have a path to immigration, but their application process stops dead until the U.S. green-card holding parent files separate I-130 petitions for them (and pays the latest fees for those). The children won't have to worry about what their priority dates will be if they're still under 21, because of their new status as "immediate relatives" of a U.S. citizen. But if they're over 21, they'll get a new priority date based on the date the I-130 was filed, landing them on another long waiting list.
If derivative children are getting close to 21 and the parent is thinking about naturalizing, it can be a good idea to file separate I-130s for them sooner rather than later.
In the past, the typically long waits for immigrant visas created problems for children of LPRs turning 21, because they dropped into category F2B, where the waits tend to be longer than in F2A.
To deal with this, Congress passed the Child Status Protection Act (CSPA). Under that law, the F2A child’s age freezes as of the filing date of the I-130 petition. So, a child whose petition was filed prior to the child's 21st birthday remains, on paper, a child under the age of 21 throughout the whole process in category 2A, on one key condition: that the parent remains an LPR. But this article is focused on the results of the parent naturalizing, as described next.
After filing an I-130 petition for a child, the lawful permanent resident petitioner might become eligible to apply for naturalization. For most purposes, this is a good idea. Becoming a citizen means you can petition for more categories of family member. And if you've already petitioned for a spouse, that I-130 petition will convert to an application for an immediate relative of a U.S. citizen, eliminating the waiting period for an available visa.
For a child, however, the effect of your naturalizing isn't guaranteed. It will depend on the child’s age when it occurs. The U.S. government counts the child’s age from the date of naturalization instead of the date of filing the application. For a child nearing the age of 21, this can cause the application to change category, which doesn’t always speed things up, as described below.
If the child is still under the age of 21 on the date that the LPR parent naturalizes, and the child has a separate I-130 approval, then the petition converts just like that of a spouse. That means that the child’s application moves from the “F2A” category to “immediate relative” of a U.S. citizen. Or as discussed above, if no separate I-130 was submitted, the LPR can file a new I-130 for the child at this time (though this will introduce delays as you wait for USCIS approval).
The good news is, there is no waiting list for immediate relative visas or green cards. (You'll get the idea from reading How Becoming a U.S. Citizen Can Speed Up Immigration for Foreign Spouse.)
If your child is over the age of 21 (thus called a “son or daughter” in legal lingo), and already has an application in the F2B category, naturalizing might automatically put the child into category “F1,” for unmarried sons and daughters of U.S. citizens over the age of 21.
That could present a problem. There has been more demand for F1 immigrant visas in recent years than for F2B visas, with the result that the waitlist tends to move slowly (though this could change). The difference can be several years’ worth. So, by naturalizing, the petitioner could seriously delay the child’s application for a U.S. green card.
Fortunately, USCIS will sometimes allow children to “opt out” of this category change.
The first thing to do is to check the current Visa Bulletin to confirm whether the F2B and F1 categories have different wait times. Look at the dates next to each category in the first chart that appears on the Visa Bulletin. A petition is eligible for further processing only when the date matches, or is before, the date in that chart.
If the F2B category has a date that is less time from the current date than the F1 category, or says "C" for current, you will probably want to opt out of the category change, so that the application processes more quickly.
To do this, the beneficiary (your child) must send a signed letter to the USCIS office that processed the I-130 asking to opt out of the petition. This is one of the only cases where a beneficiary has to contact USCIS directly.
Or, if the case is already being handled by the National Visa Center (NVC) the applicant should submit requests using NVC’s online inquiry form. NVC will forward the request to USCIS and if USCIS approves it, change the child's visa category back to F2B.
If the child was under 21 at the time the LPR filed the I-130, and thus started in category F2A, but has since turned 21, the petitioner’s naturalization can cause even more serious problems. This is because the petition automatically converts to category F1.
Instead of processing relatively quickly, in a few years maximum, your F1-category child could wait several years. What’s more, according to USCIS and the Board of Immigration Appeals, there is no opt-out provision for people in this situation. The change is automatic and irreversible.
The change is even more dramatic when the child is from Mexico or the Philippines. Both of those countries have waitlists in the F1 category that typically average at least ten years.
For petitioners who live within the jurisdiction of the 9th Circuit Court of Appeals—which includes the West Coast of the U.S., as well as Idaho, Colorado, Nevada, Alaska, and Montana—there is good news. The Court addressed this problem in 2018, in a case called Tovar v. Sessions. It found that the government was incorrectly interpreting the law. So, in that jurisdiction, F2A category applications now automatically convert into petitions for an immediate relative of a U.S. citizen even if the child turned 21 before the petitioner became a citizen.
A similar result was reached in the 2nd Circuit, in the case of Cuthill v. Blinken. That circuit covers Connecticut, Vermont, and New York.
If you are a petitioner living in another jurisdiction, however, the only way to avoid your F2A child being switched to category F1 when you naturalize is to hold off on seeking citizenship. Wait until after your child has come to the United States as an F2A green card holder.
This is a complicated area of law, which can have severe consequences for your immigration petition for a relative. Understanding the potential issues helps you to navigate this process easily so that your children can come to the U.S. as quickly as possible. A lawyer might be able to help strategize approaches such as filing an I-130 for a child in advance of your naturalization or taking steps to postpone the naturalization interview or swearing in.
]]>There's one major exception, however. Under the Adam-Walsh Child Protection and Safety Act of 2006 (the “Adam Walsh Act”) U.S. citizens and lawful permanent residents (LPRs) who have certain types of criminal convictions cannot petition for family members to receive U.S. residence (green cards). (See I.N.A. §§ 204(a)(1)(A)(i) and 204(a)(1)(B)(i).) The same limitation applies to U.S. petitioners filing K-1 fiancé visas.
If a U.S. citizen or LPR with one of the relevant crimes on record submits USCIS Form I-130 to start the petition process, the U.S. government will in all likelihood deny it. U.S. Citizenship and Immigration Services (USCIS) runs criminal background checks on U.S. petitioners in such cases, to find out whether the FBI, sex offender registries, or a related agency have a record of any crimes.
If one of the crimes that are a problem under the Adam Walsh Act turns up, the foreign-born person might, as a result, be unable to immigrate via this marriage.
Broadly speaking, the category of crimes that will bar citizens and green card holders from petitioning for immigrants are offenses against a minor (someone under the age of 18). These include:
Foreign convictions also count for purposes of this law (with exceptions for cases where the defendant did not receive a fair trial).
Would-be U.S. petitioners who have anything remotely similar to one of these crimes on record should speak to an immigration attorney before filing an immigrant visa petition on a family member's behalf.
The law created an exception for instances where the Department of Homeland Security (DHS) determines, in its sole discretion, that the U.S. person filing the visa petition poses no risk to the beneficiary.
It's up to petitioners to not only ask for this exception, but to prove that they pose no risk, “beyond a reasonable doubt.” That's a high burden of proof. To successfully convince DHS, the U.S. petitioner will need to supply documentary evidence (preferably certified copies or signed affidavits) showing what happened and what the petitioner has done by way of rehabilitation. These might include, for example:
If the DHS is convinced that the petitioner poses no risk, the I-130 application can move forward. If not, this is the end of the line. There is no appeal from the DHS's determination.
Because of the complexities of interpreting criminal law in the context of immigration law, and what's at stake, it would be wise to get an attorney's help with this filing, to make sure it gets done right the first time.
]]>In immigration law lingo, the child is a “derivative”—someone who derives the ability to immigrate from someone else, without the need to apply separately. (See When Children Can Immigrate to the U.S. With Their Parents, as ‘Derivatives’ for details on who qualifies as a child.)
After the I-130 is approved, each family member must apply for the actual U.S. entry visa separately. But at least the whole family can immigrate at the same time if they want to. But what about children you couldn’t list on the I-130 because they weren’t born or otherwise added to the family yet? They are not out of luck, though extra paperwork might be required, as this article will discuss.
Your relatives might be waiting for a visa for several years after the I-130 is approved, due to the annual quota on “family preference” visas. It’s entirely likely that they might have a child during this time.
If a child is born outside the U.S. after the I-130 was approved, do you need to file another I-130, for the new child? If so, that would not be good, because the filing date of an I-130 determines when a visa becomes available, based on what's called the "priority date." A later I-130 would mean the newborn probably wouldn’t be able to immigrate until later than the rest of the family.
Fortunately, the law takes care of you in this situation. Any child born to your relative before your relative is admitted to the U.S. can get a visa along with the rest of the family, without another I-130 and without any extra wait (if a waiting list has developed in main beneficiary's visa category). When it’s time for the family to apply for their visas at the U.S. embassy or consulate, your relative can apply on behalf of the child, showing proof of the birth (a government-issued birth certificate) and the I-130 approval from USCIS.
If your relative was unmarried when you filed the I-130, and then after the I-130 was approved your relative got married to someone with children, can those “stepchildren” immigrate along with your relative? They can, as long they were under 18 when your relative got married. (The new spouse can immigrate, too.)
If your relative adopted a child after the I-130 was approved, the adopted child can immigrate with the family if the child was adopted while under 16 (18 if it’s the natural brother or sister of another child your relative adopted) and after the child has been in your relatives’ legal custody, and resided with them, for at least two years.
If your relative is the natural mother of a child born out of wedlock after the I-130 was approved, the child can immigrate with the mother. If your relative is the natural father of a child born out of wedlock after the I-130 was approved, the child can immigrate with the father if the father has or had a bona fide (real) parent-child relationship with the child.
If your relative is not the natural father of the child—for example, his wife had an affair and gave birth to a child—or if he is the natural father of a child but hasn’t had a bona fide relationship with the child, he can “legitimate” the child so that the child becomes eligible to immigrate with him.
To “legitimate” a child means to acknowledge that a child is legally one's own. Your relative must legitimate the child under the law of the child's residence or domicile, or under the law of the father's residence or domicile. (“Residence” is where the person can be considered to live for purposes of the law, even if they were not there all the time; “domicile” is where the person actually lives.) The legitimation must take place before the child reaches 18 and while the child is in the legal custody of the legitimating parent or parents.
Even though you won’t have to file another I-130 if a child is born to your relative after the I-130 is approved, several things could happen that could affect the child’s ability to get a visa, either positively or negatively.
Your naturalization: If you’re a green card holder petitioning to bring the child’s parent (your spouse) to the U.S., you might decide to get your U.S. citizenship after the I-130 was approved. This would change your spouse and the child into your “immediate relatives.” You wouldn’t have to file a new I-130 petition for your spouse, but you would have to file a new I-130 petition for each child. (See How Spouses and Minor, Unmarried Children of Permanent Residents Can Change Visa Category.) Although it might take a few months for the child’s I-130 to be approved, “immediate relatives” don’t have to wait in line to get their visas, so getting your citizenship should speed up the immigration process.
Death or divorce of your relative (the parent): The child’s ability to get an immigrant visa through the parent will end if the parent dies before the family is able to get visas. The I-130 process will have to begin all over again if there is another U.S. relative who can petition for the child.
If your relative divorces while waiting for a visa, natural children who were born after the I-130 approval are not affected, but stepchildren who came into the family after the I-130 approval might be. Divorce usually ends the stepchild relationship, so the children of your relative’s ex-spouse will lose their ability to get visas through your relative, unless the stepchildren can establish that they have an ongoing relationship with your relative.
The child “ages out”: For some relatives of lawful permanent residents, the wait for a visa can be many years. It’s even possible that your relative has been waiting so long for a visa that a child born after the I-130 was approved is now over 21! Unless the child fits the criteria to be legally considered younger than 21 under the Child Status Protection Act (see How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries), the child will not be able to get a visa through your relative.
The child gets married: Marriage is another way for the child who has been waiting a very long time for a visa to lose “child” status and the ability to get a visa through your relative. It’s very important to tell the child, if they still want the immigrant visa, to not get married until after the visa has become available and the child has entered the U.S. and become a permanent resident.
If dealing with these legal permutations is confusing you or has you worried that someone in the family might lose their chance to immigrate along with other family members, consult an experienced immigration attorney in the United States.
]]>I’m a U.S. citizen who fell in love with and married a man who overstayed his tourist visa. His conditional green card was approved two years ago and we recently filed for the permanent, ten-year card. Last week, he decided to leave me for another woman and told me that he never loved me. I’m heartbroken. I feel like I was conned so that he could fix his papers to stay in the United States! I’m also afraid I’m going to have to support him after all he’s done to me. What can I do to make sure he doesn’t get his green card?
First of all, I’m sorry that this happened to you. More than anything, it sounds like you need a family law attorney licensed in your state to help you to end your marriage on terms that are favorable to you. Your divorce or annulment proceedings will determine issues of property division, child custody, and child and spousal support. Depending on the circumstances of your marriage and your state of residence, an annulment based upon fraud may be a good option. You should also consult an experienced immigration lawyer who can help you decide what to do next.
If U.S. Citizenship and Immigration Services (USCIS) hasn’t made a decision on your Form I-751, Petition to Remove the Conditions of Permanent Residence, you should submit a letter to the agency asking to withdraw the joint petition, and also refuse to attend any scheduled interview.
Be aware that your husband may still file a new I-751 asking for a waiver of the joint filing requirement. For more on this, see What if Your U.S. Spouse Won’t Sign the Joint Petition (I-751)?
If your spouse has already received the ten-year green card, there is little else you can do besides “turn him in” for marriage fraud. You may report your suspicion that you were an innocent victim of a scam to USCIS or Immigration and Customs Enforcement (ICE).
However, remember that the warning that “anything you say can and will be used against you” applies here. If there is any reason for USCIS or ICE to suspect that you were complicit in the fraudulent marriage, you could also be investigated. To put it bluntly, these immigration agencies “have seen it all.” While a number of U.S. citizens have been duped by green card scammers who pretend to be in love, there have also been plenty of instances where embittered U.S. citizens have reported their immigrant spouses, even if the marriage WAS in good faith.
See Penalties for Committing Immigration Marriage Fraud and Immigration and Nationality Act § 275(c), 8 U.S. Code § 1325(c)).
Also, keep in mind that in order to get your husband’s initial green card application approved, you had to sign Form I-864, Affidavit of Support, a legally binding contract between you and the U.S. government in which you agreed to financially support your non-citizen spouse.
Because these types of proceedings are not usually published, it is unknown whether a duped spouse has ever been able to contest liability under the I-864. Divorce will not terminate the sponsor's obligations under the Affidavit of Support, but those obligations WILL end if the immigrant loses rights to a green card and leaves (or is removed from) the United States. See The U.S. Sponsor's Financial Responsibilities for more on this.
But romantic engagements do not always work out. What happens if you have to cancel your I-129F petition? And then what if you later meet someone new, who is also from another country, and want to file another petition?
Many U.S. citizen petitioners don’t realize that a previous petition on file can make it more difficult to file again. U.S. immigration officers will examine your petition closely to make sure that your relationship is legitimate. In some circumstances you might need to ask for special permission, or a "waiver" to go forward in spite of your multiple filings.
Exactly what you need to do, procedurally, depends on how many previous petitions you have filed, how recently you filed them, when you realized that the relationship wasn’t going to work out, and where that I-129F petition was in terms of U.S. government processing when you canceled it.
A fiancé visa goes through several stages before being approved by the U.S. government:
Once the foreign-born fiancé arrives in the U.S., there are additional steps to follow. First, the couple must marry within 90 days. Then, the fiancé may (if desired) file for lawful permanent residence (a green card) based on the marriage, and USCIS will interview the couple again before approval. In most cases, the foreign-born spouse applies for the green card immediately after getting married.
If the marriage is less than two years old when USCIS approves the application, that person will receive a conditional, two-year green card, and will need to apply to remove conditions on residence and make it truly permanent. This application (Form I-751) must be filed with USCIS just before the person has had the green card for two years.
Filing a petition for a second or third foreign-born fiancé is going to be more or less difficult depending on when, within this process, you cancelled the prior application.
If you filed two or more previous I-129F petitions for a fiancé—or if you filed a petition for a fiancé within the last two years—you will need a waiver of your multiple filings in order to go forward with a new petition. In other words, if you submit a new I-129F petition without asking for a waiver, USCIS is likely to reject it and send it back to you, or accept it and send you a request for evidence, thus delaying the process.
This is required by the International Marriage Broker Regulation Act (IMBRA) and is meant to protect both you and the foreign fiancé—meaning that USCIS wants to make sure your relationship is legitimate and free from abuse. It sees multiple I-129F filings as a red flag; a pattern possibly indicating attempted sham marriages.
The actual filing of the waiver is simple. You must select the correct box on Page 9 in Part 3, Sections 5.a-5.d of Form I-129F (07/30/20 version). Which box you select will dictate what you need to provide for the waiver.
If you have no prior criminal history, and no one has ever filed a restraining order against you, check box 5.a. for a “General Waiver.” Provide an explanation and evidence to show why the U.S. government should give you the waiver. This can include evidence of any unusual circumstances, like the death of your previous fiancé. But you should also provide evidence that the relationship was legitimate and the reasons that it did not work out.
If you canceled the petition before the K-1 visa was approved, then you can explain why, and submit evidence of your cancellation. If your prior fiancé actually came to the U.S., then it is important to explain where that person is now and why you didn’t get married. If you filed any complaints against your previous fiancé, provide copies of those to USCIS.
If you have any violent criminal history, check box 5.b. for an “Extraordinary Circumstances Waiver.” You will need to submit evidence of the prior crime, evidence of rehabilitation, letters from community members, and other evidence that shows you deserve a waiver. If the violent crime was drug or alcohol-related you should submit evidence of completing a rehabilitation program. Submit evidence of the prior application, a detailed statement, and any evidence showing why the previous relationship failed.
There is a third type of waiver ("Mandatory Waiver"), which is intended for victims of domestic violence. If you have a criminal history, including a violent crime, but it is related to a situation where you were being battered or abused, check box 5.c. USCIS must grant this waiver as long as you meet the conditions. You must have been a victim of battering or extreme cruelty, and show that either: (1) the order you violated was intended to protect you, (2) it was self-defense, or (3) the crime did not cause a serious injury. Support the waiver by providing records of the crime and evidence, including a detailed personal statement, about the abuse. Letters from a psychologist, counselor, or police officer are particularly valuable for a mandatory waiver.
No matter what, you should describe to USCIS any previous marriage-based or fiancé visa application and give an explanation. USCIS takes marriage fraud very seriously. This means that the immigration officers look closely at cases where people have applied multiple times for a spouse or fiancé.
Applicants in this situation often receive requests for evidence from USCIS, asking them to provide a statement about the prior marriage or fiancé visa when they are petitioning for a new fiancé.
Along with the general evidence for your application, you should write a letter to the USCIS officer, describing what happened in the prior case. Include your account of why the relationship ended. Have several people read the letter before you finalize it, to make sure that it appropriately explains all of the circumstances in your individual case.
Also submit affidavits from people who know you and who knew about the prior fiancé visa case, with their own personal observations in support of your explanation.
The U.S. government will issue approve the fiancé petition (and ultimately the visa) if it is satisfied that you meet the legal requirements and that your relationship is genuine.
Do not get discouraged if you need to apply for a waiver, or if you have previous applications. Remember that it is up to you to explain to the government why it should issue the visa in your case. Whether you need a waiver, or have just filed a previous petition, the most important thing is to provide detailed information showing why this was personal circumstance as opposed to an instance of attempted marriage fraud.
]]>For years the U.S. Congress, as well as U.S. Citizenship and Immigration Services (USCIS) insisted that heterosexual marriages were the only ones that counted for immigration purposes. A law called the "Defense of Marriage Act" or DOMA had defined “marriage” as between a man and a woman, with the result that only heterosexual partners could petition for a green card for their foreign-born spouses.
However, as a result of the U.S. Supreme Court's decision in United States v. Windsor, same-sex foreign spouses of U.S. citizens and permanent residents became eligible to apply for green cards. The Court held that DOMA violated the equal protection guarantee of the U.S. Constitution and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.
The bottom line is that any same-sex marriage that is legally recognized in the United States or in the country where it took place counts for U.S. immigration purposes.
In order to successfully get a green card, all applicants must make it through USCIS’s multi-step process. To start matters, the U.S. citizen spouse must fill out a petition on USCIS Form I-130.
Just like a same-sex couple, you’ll have to prove that your marriage is legally valid in the place it occurred. After the Supreme Court’s later decision in Obergefell v. Hodges, all states must recognize same-sex marriages performed anywhere within the United States. Thus, if you and your spouse were married within the U.S., meeting the legal-marriage requirement isn’t a problem. The USCIS also recognizes same-sex marriages that took place outside the United States, as long as the marriage is legally recognized in the country in which it occurred.
However, many countries still don’t recognize same-sex marriage. In some of these countries, travel might be difficult for the foreign spouse, making it particularly difficult to enter into a legally recognized marriage. (It’s important to make sure that you don’t try to get around this problem by getting a tourist visa to enter the U.S.—this could be considered visa fraud, and could result in denial of a green card. See the discussion below about fiancé visas.)
In most circumstances, you can prove legal marriage by presenting a copy of your marriage certificate. Note that USCIS usually requires that you have a certificate created by an official governmental agency rather than a church or other nongovernmental entity. If you’re married abroad, see what your options are for getting a certificate that’s officially recognized, registered, or issued by a governmental agency.
Another requirement for a marriage-based green card is that the marriage is “bona fide”—meaning you didn’t get married simply to provide the non-citizen with a pathway to citizenship. USCIS typically requires all couples to provide copies of documents such as photos of the wedding, letters, bills or statements showing you live together, and children’s birth certificates.
If your foreign-born fiancé is out of the country, but you want to get married in the United States, your best option is probably to get a K-1 fiancé visa. A K-1 visa allows your fiancé to spend 90 days in the United States. While your fiancé is in the country, you can get married, and then apply for “adjustment of status,” in other words, U.S. lawful conditional residence.
The legal requirements for getting a K-1 visa for same-sex couples are the same as those for different-sex couples. Perhaps most importantly, you must intend to get married. The U.S. government will require more than just a general goal of tying the knot—you’ll have to provide evidence of plans, such as reservations for a venue or an appointment to appear before a judge. It’s a good idea to make sure your plans are flexible, though, because there’s no guarantee of how long it will take to get approved for the fiancé visa.
You’ll also have to demonstrate that you and your intended spouse have met in person within the two years immediately before filing the I-129F petition for the fiancé visa. Finally, you must legally be able to marry. Being a same-sex couple is no longer a barrier to getting a legal marriage in the U.S., but you’ll want to make sure that you meet all the other requirements for getting a marriage license.
For more information, check out Nolo’s Fiancé & Marriage Visas: A Couple’s Guide to U.S. Immigration. The USCIS also offers an online policy manual that includes a section on immigration for spouses of U.S. citizens. Finally, Nolo has an online section addressing marriage-based green cards, which goes into greater detail on many of the topics addressed in this article.
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