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.
]]>U.S. citizens can, under federal immigration law, petition for (sponsor) their foreign-born brothers and sisters to come to the United States and become lawful permanent residents. These siblings fit into the fourth preference category of family immigration. But what about when a parent has had more than one marriage or relationship, and the U.S. citizen thus has half-sisters, half-brothers, stepsisters, or stepbrothers?
The answer to whether they can apply for U.S. lawful permanent residence (a green card) depends on various factors to do with family relationships, as described below.
A U.S. citizen who is age 21 or older may, by law, petition to have brothers and sisters (siblings) immigrate to the United States in certain circumstances. The definition of sibling in U.S. immigration law includes people who were the children of at least one common parent; that is, it includes half-blood siblings. (See the definition of “child” in Section 101(b) of the Immigration and Nationality Act or I.N.A.).
If you are “paternal half-siblings” (the common parent being your father) you will, during the application process, need to prove to U.S. Citizenship and Immigration Services (USCIS) that your father was once married to your mother, that their marriage has legally ended, and that the father has married your half-siblings’ mother (and that if she was ever married, that marriage, too has legally ended). You'll do this using official documents, most likely.
Again, a U.S. citizen who is over the age of 21 can petition for siblings, and the definition includes not only biological brothers and sisters, but step-brothers and step-sisters, under certain circumstances. The key is that both you and your stepsister or stepbrother, at one time, met the legal definition of a “child” of a common parent. It doesn’t matter if you never lived in the same home.
One of you will need to meet the definition of “stepchild” under U.S. immigration law (specifically, Sections 101(b)(1) and (b)(2) of the Immigration and Nationality Act or I.N.A, or 8 U.S.C. § 1101(b)(1) and (b)(2).), which requires that the child have not yet reached the age of 18 when the parents' marriage took place.
You should realize that even after preparing and filing the visa petition that starts off the process (on USCIS Form I-130), it will be an astonishing number of years before your half-siblings or step-siblings can complete the process of obtaining U.S. green cards.
Due to high demand, the average wait in the sibling category (“fourth preference” or F4) averages around 16 years for most applicants, 20 years for those from India, 23 years for those from Mexico, and 21 years for those from the Philippines (as reported on the State Department's monthly Visa Bulletin.)
The wait could change by the time your siblings are in the system, depending on how many others apply around the same time they do, and how great the backlog is before them. Still, it is almost guaranteed to be a very long wait.
They will not be allowed to live in the U.S. during this waiting time, unless they can convince a U.S. consulate to issue a temporary visa (for example, as a student or visitor). But U.S. consulates are reluctant to do that in cases where the person has a family-based visa petition on file, fearing that the person will misuse the visa in an attempt to stay in the U.S. permanently before they’ve got a green card. The intention to stay only temporarily is fundamental to obtaining a nonimmigrant visa.
Another concern is that the U.S. Congress occasionally makes noises about eliminating the fourth preference visa category. Given all these issues, filing the I-130 visa petition as soon as possible might be a good idea.
Consult an experienced immigration attorney for a full analysis of your step-sibling or half-sibling's chance at immigrating, and for help preparing the paperwork and monitoring the case over the many years it will take to obtain approval.
The biggest problem is a section of U.S. immigration law saying that even if the U.S. petitioner started the process by filing an visa petition (Form I-130) and this petition was approved by U.S. Citizenship and Immigration Services (USCIS), that approval is automatically revoked if the U.S. petitioner dies. (See 8 CFR § 205.1(a)(3)(i)(B).)
There are, however, exceptions or ways to get around this problem. We'll discuss those here. Be aware that you might need to act quickly to take advantage of them.
The spouse of a U.S. citizen has the most options of anyone after the U.S. citizen petitioner dies, including filing a "self petition" or seeking an alternate form of relief under Section 204(l) of the U.S. immigration law.
Self-petition on Form I-360. No matter whether the I-130 petition has been filed with or approved by USCIS at the time of the death, if you haven't remarried and weren't divorced or legally separated from the U.S. citizen, you can potentially take advantage of a 2009 change to U.S. immigration law that allows surviving spouses of U.S. citizens to petition for themselves. (See I.N.A. § 201(b)(2)(A)(i).)
Unlike in previous versions of the law, this applies regardless of how long the couple was married prior to the spouse’s death. (The old law required a minimum of two years at the time the U.S. citizen died.)
If the U.S. spouse had already filed an I-130, you would want to notify USCIS of the U.S. petitioner’s death and request it to be converted to an I-360. This works whether the I-130 had already been approved or not.
If the U.S. spouse had not yet filed an I-130, then you'd need to file a self-petition within two years of your U.S. citizen spouse’s death. For details, see Filling Out USCIS Form I-360 Self Petition as a Widow(er) of a U.S. Citizen. You may include your children who are under 21 years old on the I-360 self-petition. You will still have to show that you and your spouse had a bona fide marriage, that you have not remarried, and that you are not inadmissible to the United States. But you need not worry about the usual requirement of getting a financial sponsor to avoid the public charge ground of inadmissibility. Instead, you'd file Form I-864W, indicating that you qualify for an exemption.
Section 204(l) relief. If you have remarried and therefore cannot self-petition, there's another option in the Immigration and Nationality Act known as section 204(l) relief. However, it helps only relatives who are "residing" in the United States and were doing so when the U.S. petitioning relative died. And you'd need a substitute financial sponsor. See further discussion below.
If you are the foreign-born spouse or other relative of a deceased U.S. lawful permanent resident (a green card holder), you cannot self-petition the way the spouse of a deceased U.S. citizen can. However, other “survivor benefits” found within U.S. immigration law might assist you, depending on how far along your case got in the processing pipeline, including "humanitarian reinstatement" and section 204(l) relief.
Humanitarian reinstatement. If your U.S. petitioner was able to file a visa petition for you (on USCIS Form I-130) before passing away, and that petition was approved by USCIS before the death, you (and eventually your children) might be able to use "humanitarian reinstatement" to reactivate the petition and let your case go forward once your Priority Date becomes current. (See How to Ask for Humanitarian Reinstatement of a Relative Petition.)
If you are living in the United States, you should then be able to proceed with an adjustment of status. If living outside the United States, you would get an immigrant visa through consular processing. (An immigrant visa becomes a green card as soon as you use it to enter the United States.)
Section 204(l) relief. If USCIS had not yet approved the I-130, there's another option in the Immigration and Nationality Act known as section 204(l) relief for surviving relatives. However, it helps only relatives who are "residing" in the United States and were doing so when the U.S. petitioning relative died. "Residing" means the U.S. must have been the person's principal, actual dwelling place. People who were out of the U.S. temporarily when their petitioning relative died but whose home was actually in the U.S. can still prove that they were “residing” in the U.S. and take advantage of this law.
Also, “reside” does not require you to show that you were or are living in the U.S. lawfully—although as a practical and legal matter, residing unlawfully in the U.S. could cause problems when applying a green card. Also, if you have an executed deportation order, you are no longer “residing” in the United States.
USCIS can authorize the case to move forward if it determines, in its discretion, that doing so would be in the public interest.
There is no form to ask for section 204(l) relief. You would need to send USCIS a written request with supporting evidence of eligibility, following the instructions on its website. (When mailing such a request, add the words "“INA 204(l)” on the envelope and cover letter, to avoid USCIS confusion).
Also, you would have to find someone with financial means to sign an affidavit of support as described on your behalf (Form I-864) as a "substitute sponsor."
If at all possible, hire an attorney to help you analyze your rights as the beneficiary of a deceased family member and prepare an application for humanitarian reinstatement. These are unusual types of cases and USCIS sometimes mishandles them or takes many months to reply, and you have no rights to appeal or try again in most of the situations described above.
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