Citizens of the United States

According to the Immigration and Nationality Act, if you are a citizen of the United States and wish to petition your:

  • Children (younger than 21 years of age),
  • Spouse,
  • Parent (as long as you are older than 21 years of age),

you may file an application for the benefit of such family members, and the same will not be subject to annual limits for the issuance of immigrant visas to the United States. It is also possible that if these relatives entered the country lawfully, they may qualify for adjustment of status.

On the other hand, if a U.S. Citizen wishes to petition:

  • Single or Married Sons and Daughters (older than 21 years of age), or
  • Siblings(21 years of age or older),

Such applications, are subject to yearly quotas for the issuance of visas to immigrate to the US, and will most likely have to enter a waiting before being able to receive a visa.

Permanent Residents

On the other hand, if you are a Legal Permanent Resident, you may file an immigrant visa petition for the benefit of the following persons:

  • Children (younger than 21 years of age),
  • Single sons and daughters (older than 21 years of age), y
  • Spouse.

Such applications, however, will be subject to annual immigrant visa quotas, which means that such relative may have to wait months, or even a few years for a visa to become available.

If the relative of the lawful permanent resident is legally present in the United States and there is already an immigrant visa available, such relative may also benefit from an adjustment of status. We recommend you schedule a consultation with one of our attorneys to inquire whether your relative may benefit from this process.

Consular Processing vs. Adjustment of Status – How to Immigrate

I n family-based immigration cases, if the immigrant is the spouse, child or parent of a citizen of the United States, and is present in the United States after being admitted or “paroled ” into the country, such person can apply to the United States Citizenship and Immigration Service (USCIS) to adjust his or her status to Lawful Permanent Resident of the United States and receive a “Green Card”. The main benefit of this process is that it allows the immigrant to receive a permanent residence without leaving the United States. To qualify for this benefit, it is very important that the person was legally admitted to the United States, and in some cases, is still in lawful immigration status.

One of the few exceptions to the requirement of lawful admission to the country for adjustment of status is if the immigrant entered the United States unlawfully, or overstayed after lawful admission, all this before December 21, 2000, and had a pending immigrant petition for an employment-based or family visa submitted before April 30, 2001. If that is the case, the immigrant could qualify  for adjustment of status under section 245(i) of the Immigration and Nationality Act. In order to apply, the immigrant needs to file an application for adjustment of status, and pay a fine of one thousand dollars ($ 1,000.00).

If the immigrant is a Cuban national, and was admitted, inspected or  “paroled” (was granted permission to enter) to the United States, he or she may apply for adjustment of status after waiting for a year and a day after being admitted or paroled into the country.

If the immigrant is not eligible for adjustment of status, it is very likely that the person has to undergo “Consular Processing” to receive a visa to immigrate to the United States.

The procedure for applying for immigrant visas for relatives described above consists of three stages. The first stage is executed by a U.S. Citizen or permanent resident who qualifies to petition the immigrant and consists of submitting certain applications on behalf of such person. Second, the USCIS receives and evaluates the applications filed by the petitioning relative to examine and determine whether the application is approved. If approved, it moves to the third stage: consular processing.

Consular Processing begins when the USCIS notifies the National Visa Center (NVC) that an immigrant visa petition was approved. Once a visa is available for such immigrant (which depends on whether this is an immediate relative of a citizen of the United States or permanent resident), the NVC will notify the immigrant and/or the applicant and will request payment of the immigrant visa and affidavit of support fees.

The NVC will then send a package with instructions indicating which forms must be completed, plus the documents that must be submitted prior to a consular appointment abroad. These documents include:

  1. “Affidavit of Support” , or statement of economic capacity of the petitioner to provide support to the immigrant.
  2. Application for Immigrant Visa and foreign civil documents.

Once the filing fees are paid, and the applications and civil documents are filed with the NVC, it will schedule the immigrant visa interview with the U.S. Consulate serving the country of residence of the visa applicant. At the interview, a consular officer will speak with the potential immigrant regarding the basis of his/her application to receive a visa, and if there are no reasons deny issuance of a visa, or to exclude the immigrant from entering the United States, the same may be issued by the consulate.

What should I submit with my application?

These are some of the basic documents that must be submitted with a Petition for Alien Relative (form I -130). This list is for guidance purposes only and does not replace official instructions issued by the USCIS:

  • 2 passport-sized pictures of the petitioner;
  • 2 passport-sized pictures of the beneficiary;
  • Filing fees payable to the “United States Department of Homeland Security;”
  • Marriage Certificate of the petitioner and beneficiary (if married);
  • Birth Certificate of the petitioner (copy);
  • Copy of Permanent Resident Card of petitioner (if applicable);
  • Copy of petitioner’s passport; and
  • Copy of Divorce Sentence of petitioner and beneficiary (if applicable);
  • If the petition is for a spouse, some evidence of the “bona fides” of the marital relationship between the two should be submitted. For example:
    a. Pictures of the wedding;
    b. Photos of the couple celebrating with family members and friends;
    c.Two statements made by friends and/or acquaintances regarding the bona fide character of the marriage;
    d.Proof of joint travel; and
    e. Proof of jointly acquired properties and shared debt.