Immigration Law Update

By Patricia Barbee

As discussed in last month’s immigration article in this newsletter, there is a proposed change coming to the I-601 waiver process for those with unlawful presence in the United States. Once the change is implemented (which could be as soon as December 2012), those able to benefit from it will undergo a shorter and less stressful green card process. The only catch — the change in regulation will only apply to immediate relatives of U.S. citizens.

For those lucky enough to be immediate relatives of U.S. citizens, the proposed change will allow applicants who must consular process to ask (and hopefully receive) “forgiveness” for their unlawful presence before leaving the country for their interview, giving them greater peace of mind that their cases will be approved and shortening the time they must spend away from their families.

With this in mind, it is helpful to know just which family members are considered to be “immediate relatives” by U.S.C.I.S. and, therefore, are eligible for waiver application in the United States

Spouse: A husband or wife of a United States citizen is an immediate relative, and visas are always available for someone in this category — no waiting in a long line for a visa.

Child:  For immigration purposes, a U.S. citizen’s unwed son or daughter under age 21 is an immediate relative, and visas are always available for these children, even if they “age out” (turn 21 after the visa petition was filed), as long as they remain unmarried. If a U.S. citizen father was not married to his child’s mother when the child was born, more proof of the parental relationship is required than just a birth certificate; there must have been a parental relationship that included emotional and financial support to overcome the out-of-wedlock issue. This can be complicated, and a determination of legitimacy can vary by the laws of the country where the child was born, so it is important to consult an attorney in such cases.

Parent: Any mother or father of a U.S. citizen is always an immediate relative, and visas are always available for either parent. Stepparents are also immediate relatives of U.S. citizens, as long as the marriage between the stepparent and biological parent took place before the U.S. citizen petitioner turned 18. However, parents must show hardship to a qualifying relative in order to be granted a waiver, and this relative must be a U.S. citizen or lawful permanent resident parent or spouse. U.S. citizen children will not be considered when determining hardship.

Beyond the immediate relative designation, there is a system for determining visa availability based on preference. These categories apply to adult children of U.S. citizens who are older than 21 when a petition is filed, brothers and sisters of U.S. citizens, and the spouses and unmarried children under 21 of lawful permanent residents (LPRs). Unlike citizens, LPRs cannot apply for their parents, siblings or married children.

The date that a preference petition is filed is called the priority date; those waiting for visas to become available in a preference category can wait months or years for their priority date to become “current,” depending on their category and the country from which they are immigrating. Even if the wait for a visa is years in the future, it is smart to file the petition as soon as possible — the years will pass whether a petition is in the queue or not, and that petition could be like a pot of gold at the end of the rainbow for a lucky family member.

Next month we will discuss the preference categories and the visa bulletin in further detail.

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