To obtain a Green Card, there are various underlying petitions (foundations) that can be used on behalf of an immigrant such as; Family Petitions (Form I-130), Worker Petitions (Form I-140), and Asylum Petitions (Form I589).
Once the underlying petition (foundation) is either established or approved, an immigrant can apply for a Green Card by filing for Adjustment of Status (Form I-485) with U.S. Citizenship & Immigration Service (USCIS).
The most important concept to understand is that the underlying petition (foundation) and Green Card application (I-485) are adjudicated independently. Upon approval of the underlying petition (foundation) and Green Card application (Form I-485) an immigrant may live and work legally in the United States.
I-130 Relative Petition (Parent, Child or Sibling)
I-130 Relative Petition (Marriage)
I-130 Relative Petition (Marriage with spouse in Removal or with Deportation Order)
I-130 Relative Petition (Adopted Child)
I-751 Lift Conditional Status
I-751 Lift Conditional Status based on Abuse
I-360 Abused Spouse Petition / I-360 Widow/Widower Petition
I-129 Finance(e) Petition
When reviewing an I-130 Family Petition, US Citizenship & Immigration Services (USCIS) must be satisfied that:
- The person filing the petition is legally eligible to do so (i.e. is a U.S. Citizen or Green Card holder)
- The relationship between the petitioner and relative (child, stepchild, parent, spouse or sibling) is legitimate. Depending on the country of origin a DNA test may by required.
- Once USCIS is satisfied in reference to the above, the petition will be approved.
Family I-130 Petitions may be filed independently. After approval your relative could be immediately eligible to file for a Green Card (Form I-485) or they may have to wait several years before they can apply depending on the visa category.
Other times, the Form (I-130) and Form (I-485) are concurrently filed, most typically when a person is sponsoring a spouse.
Both the I-130 family and I-485 Green Card application must be approved in order to get a Green Card. Once form I-485 is filed, USCIS will look at your relative to establish eligibility for a Green Card. There are times when this review will result in the denial of the Green Card despite the fact that the foundation is in place with an approved I-130 petition.
I-130 Family Petition - U.S. Citizen
As a U.S. Citizen you are eligible to sponsor your parent(s), spouse, children, stepchildren and siblings.
If you (the petitioner) file for your spouse, children and/or stepchildren, your petition may be denied if you have a criminal conviction for domestic violence or/other crimes of violence.
If you are sponsoring your child or stepchild, the child should ideally be unmarried and under the age of 21 years at the time the immigration petition (Form I-130) is filed.
In order to sponsor a stepchild, the marriage to your non-U.S. citizen spouse must have occurred before the stepchild turned eighteen years of age.
You may also sponsor older and/or married children. Once the I-130 is approved these children will typically face lengthy wait times (in some cases approximately ten years) to file a Green Card application.
Please read detailed questions under fiancé(e) visa and marriage based petitions.
COUNTRY OF RESIDENCE (Abroad)
If your family member resides outside of the U.S. your relative will Consular Process (his/her interview will take place at the U.S. Consulate in their country). The Green Card is issued prior to entering the United States. This process can be arduous and time-consuming.
The length of time it will take for a relative to enter the U.S. depends on whether the priority date on the approved I-130 petition is current (some relative visa categories can take 15 years or more to become current, such as a sibling sponsoring a sibling).
COUNTRY OF RESIDENCE (United States)
If your family member resides in the US, your relative may be immediately eligible to file a Green Card application (FORM I-485) with Immigration. It is important to remember that many factors may affect the successful outcome of a case. Despite having an approved family petition other factors such as illegal presence in the US, or a criminal history, may mean that your relative is not eligible to continue the process for the Green Card.
I-130 Family Petition - Lawful Permanent Resident (Green Card Holder)
- As a Green Card holder or Lawful Permanent Resident (LPR) you can file a Family Petition (Form I-130) with Immigration on behalf of a spouse and/or unmarried child.
- As a Green Card holder or (LPR) you cannot sponsor a parent, stepchild or sibling. Only a US Citizen can petition a parent, stepchild, sibling or married child.
- If you (LPR) are sponsoring your child, the child should be unmarried, and be under the age of 21 years at the time (Form I-130) is filed. It is recommended that the child remain unmarried until the Green Card has been processed. If you have any questions about how marriage may affect the petition please seek legal counsel.
- If you are filing for your spouse and/or children, your petition may be denied if you have a criminal conviction for domestic violence or/other crimes of violence.
- Once the I-130 Family Petition is approved, your relative is not immediately eligible to file for a Green Card until you become a U.S Citizen.
- The priority date on an approved (LPR) I-130 Family Petition is considered valuable. In particular, as you wait to become a U.S. Citizen, an approved petition can protect children from ‘aging out’ (turning twenty-one). Therefor filing this petition effectively preserves their age at the time of filing.
- Once you become a U.S. Citizen, an approved I-130 Family Petition (LPR) can be quickly updated to U.S. Citizen status. This will enable your relative to file for a Green Card application (Form I-485) without further delay. It is important to remember that many factors may affect the successful outcome of a case. Despite having an approved family petition other factors such as illegal presence in the US, or a criminal history, may mean that your relative is not eligible to continue the process for the Green Card.
Fiancee Fiance Petitions (K1 Visas)
The K-1 Visa allows you to invite your fiancé(e) to the United States for a period of 90 days, during which time your fiancé(e) must either marry you or return to his or her home country. No extensions of time will be granted after the 90 days and no change of status is permitted.
If the relationship does not work out, you decide not to marry, and your fiancé(e) returns home, you are both independently eligible to file a subsequent fiancé(e) visa application if you so desire. You will have to file an IMBRA (International Marriage Broker Regulation) waiver if you file within two years of the first petition’s approval.
You are eligible to apply for a K-1 Visa if you meet the following requirements:
• You are a U.S. citizen
• You have personally met your fiancé(e) within the previous two years, if culturally acceptable and does not violate long-established customs, or would create extreme hardship for you or your fiancé(e)
• You and your fiancé(e) are both legally free to marry under the laws of your fiancé(e)’s country as well as the laws of the U.S.
• Proof of permission to marry if you or your fiancé(e) are subject to any age restrictions
• You marry each other within 90 days of your fiancé(e)’s arrival in the U.S.
*Only engaged couples should file a K-1 Visa. (If you wish to have a religious marriage ceremony or blessing before your departure to the United States it cannot be a legally binding marriage). If you legally marry before entry into the United States you must file an I-130 Family Petition and then a K3 Visa.
Once USCIS approves the K1 petition, the appropriate U.S. Consulate will receive the paperwork in order to schedule your fiancé(e)’s interview.
It depends on the type of criminal conviction and the sentence given. Law Offices Jon E. Jessen, LLC recommends you determine the potential consequences of the conviction prior to filing an application.
Possibly. You are required to disclose any current or past protection or restraining orders issued against you. Criminal arrests, convictions, domestic violence, sexual offenses, multiple convictions for substance and or alcohol abuse could create problems with your application. Law Offices Jon E. Jessen, LLC recommends you determine the potential consequences of the conviction prior to filing an application.
Some common issues that can lead to a denial include:
• Missing documents or incorrect paperwork
• U.S. Citizen Spouse does not show sufficient income, under the US Government Poverty Guidelines.
• Significant age difference between the couple
• Fiancé(e) cannot obtain written consent from the ex-spouse for their child to leave the country
• Spouse and fiancé(e) are unable to communicate in a common language
• Couple has not spent enough time together in person, or in contact, if culturally permitted.
• Fiancé(e) interviews poorly and fraud is suspected.
• Fiancée was previously in the U.S. and overstayed the visa
• The U.S. Citizen has previously sponsored a foreign national for a green card and the U.S. Citizen cannot prove that the foreign citizen maintained lawful status
• Fiancée or US Citizen has a criminal record
• Fiancée has a serious, contagious illness
• Fiancée commits a misrepresentation during the interview
• Petition includes a document that is deemed to be fraudulent
Yes. If your fiancée children are under 21 years of age they are eligible for a K-2 Visa.
No, a K-1 fiancé(e) visa may only be filed if your fiancée resides outside the U.S.
If you are a U.S. Citizen and your fiancé(e) last entered the U.S. legally, or is 245i protected, it may be possible to apply for a green card after the marriage.
We recommend you contact Law Offices Jon E. Jessen, LLC before deciding how to proceed.
• If your fiancé(e) entered on a K-1 Visa, the marriage must take place within ninety days of your fiancé(e)’s arrival in the U.S.
• Once married, your spouse will be eligible to apply for Lawful Permanent Residence. File an I-485 (adjustment of status) application with Immigration. The adjudication of ‘marriage adjustment’ cases can vary from several months to several years depending on various factors.
• Both you and your spouse will be required to attend an interview with Immigration. At the time of interview, you will need to show proof that the marriage is bona-fide (legitimate). Immigration will review documents, such as address displayed on driver’s licenses, joint bank accounts, tax returns and utility bills.
• If you have been married less than two years at the time of interview and the application is approved the immigrant spouse will be issued a temporary/conditional two year green card.
• After two years, the immigrant is required to file an I-751 to lift the conditional status on the green card and must continue to prove the bona fides of the marriage.
• If you are married more than two years at the time of interview a permanent green card is issued.
Marriage Based Petitions - US Citizen
Yes. You can find a financial co-sponsor. The co-sponsor must be a U.S Citizen or Green card holder and show sufficient income to overcome the poverty guidelines. You, as the petitioner, must also submit your tax returns and all other requested documents, even if your income is below the poverty guidelines.
At a marriage interview the officer will most likely be adjudicating both the I-130 Family Petition and the Green Card application (Form I-485).
The officer MUST first review the I-130 Family Petition and ensure:
- That the petitioner is a U.S. Citizen with no criminal record (as applies to the Adam Walsh law)
- That the immigrant is his/her legally married spouse.
- That the marriage is “bona fide” i.e. (that the marriage is real).
- The Immigration officer will review documents such as the address displayed on driver’s licenses, joint bank accounts, tax returns, utility bills, insurance statements, and children’s birth certificates born to the union.
- Immigration will typically allow a couple to remain together for questioning. However, an officer has permission to immediately separate the couple if he/she so wishes.
- Questions tend to be general in nature such as How did you meet? Where did you meet? How long have you known each other? Where were you married? Did you have a big wedding? Where do you live?
- If the officer is satisfied with the answers received, and is happy with the documents provided to prove bona fides of the marriage he/she will move on to review the Form I-485 (Green Card application). The officer will then look to establish that the immigrant entered legally, has no criminal record or other issues that may make the immigrant inadmissible.
- The couple will normally be advised at interview if they have passed the interview or if more information is required. If the officer requests more documentation (e.g. such as a past divorce certificate) an I-72 is issued allowing an additional thirty days to produce the needed documents.
- If an officer is unhappy with how he/she perceives the couple answered the first set of questions he/she may decide at this point to separate the couple and questioned them independently.
- In this format couples are asked very detailed questions such as “What color were the sheets on your bed this morning?” How many brothers does your spouse have? Did you buy an engagement ring? Do you have a shower curtain or shower door in your main bathroom? The couple is asked the same questions and on completion the officer compares their answers. If this format produces inconsistent results it is most likely the officer will issue an “Intent to Deny” thereby serving notice that the petition will be denied unless the couple can offer a plausible explanation for the inconsistent answers.
United States Customs & Immigration Services (USCIS) has the authority to question a couple together or separately. Some immigration offices do separate couples from the get go but it is more usual that a couple will remain together during questioning.
The questions to start are typically general in nature such as:
- How did you meet?
- Where did you meet?
- How long have you known each other?
- Where were you married?
- Did you have a big wedding?
- Where do you live?
- What are your professions?
If the officer is unhappy with how he/she perceives these answers the couple may be immediately separated and questioned independently or the interview will be suspended and a new date issued for the couple to return for further questioning. If this occurs it is an indication that fraud is suspected.
During independent questioning couples are asked very detailed questions such as:
- What color were the sheets on your bed this morning?
- How many brothers does your spouse have?
- Did you buy an engagement ring?
- Do you have a shower curtain or shower door in your main bathroom?
The couple are asked the same questions. On completion, the officer compares their answers. If this format produces inconsistent results it is likely that the officer will issue an “Intent to Deny” thereby serving notice that the petition will be denied unless the couple can offer a plausible explanation for any inconsistent answers.
An officer may not be able to adjudicate a Green Card application if more information is needed. The officer should formally request missing documentation by issuing an I-72 Request for additional information. (Do not leave the interview without an I-72 if you have been made aware that more documentation is needed). An I-72 allows the request to be tracked and also provides the immigrant with an additional thirty days in order to produce the needed documents.
It is mandatory to respond to an I-72 within the thirty day timeframe.
TIP It is just as important to keep proof that you filed an I-72. Our office suggests submitting an I-72 by certified mail, Fedex, or UPS. Keep the tracking information in a safe place in case you need it later. If delivering an I-72 by hand to the local office, make a copy of the I-72 and have the officer who takes the document date stamp your copy. It is always an immigrants burden to prove a timely response.
- An I-601 Waiver is required if your immigrant spouse entered without inspection and you can prove extreme hardship to you (as the U.S. Citizen) or U.S. born children.
- The standard requires more than emotional or financial hardship. USCIS looks for such things as medical conditions or children with learning disabilities.
- If you have been married less than two years at the time of interview and the application is approved, the immigrant will be issued a temporary/conditional two-year green card.
- After two years, the immigrant is required to file an I-751 petition to lift the conditional status on the green card with USCIS and must continue to prove the bona fides of the marriage.
- If you are married more than two years at time of interview, the applicant or beneficiary will receive a permanent green card and will not be required to file an I-751.
- It is mandatory to Lift Conditional Status on a temporary Green Card. Form (I-751) must be filed within 90 days prior to the expiration date on the conditional Green Card. Failure to do so can result in the immigrant being placed in Removal Proceedings.
- In addition, failure to file Form (I-751) in a timely manner is also problematic and can be difficult to overcome.
- When filing Form I-751 submit proof that the marriage continues to be bona fide by providing documents such as joint tax returns, utility bills, birth certificates of children born since the Green Card interview, mortgage or rent statements.
- If the marriage has broken down the immigrant must still file Form I-751 as divorced.
If you received your Green Card via marriage and are still married you can file for citizenship two years and nine months after the receipt of your Green Card.
If you received your Green Card via marriage and are since divorced you can file for citizenship four years and nine months after the receipt of your Green Card.
File an I-130 petition with the appropriate USCIS Service Center. Once this application is pending file a K-3 Visa (I-129f) with the appropriate USCIS Service Center. Your spouse may then enter the U.S. and then file for adjustment of status once the I-130 petition is approved.
- File an I-485(adjustment of status) with USCIS after entry into the US and upon approval of the I-130 petition. The adjudication of marriage adjustment cases can vary from several months to several years depending on various factors.
- Both you and your spouse will be required to attend an interview with USCIS. At the time of interview, you will need to show proof that the marriage is bona-fide (legitimate). USCIS will review documents such as address displayed on driver’s licenses, joint bank accounts, tax returns and utility bills.
- If you have been married less than two years at the time of interview and the application is approved the immigrant will be issued a temporary/conditional two year green card. After two years the immigrant is required to file an I-751petition to lift the conditional status on the green card and must continue to prove the bona fides of the marriage.
If you are married more than two years at time of interview a permanent green card is issued to the Immigrant.
Marriage Based Petitions - Lawful Permanent Resident
As a Green Card holder you have limited options. It is recommended you file for citizenship as soon as you are eligible to do so. If your spouse last entered legally, or if you are 245i protected, you can start the immigration process by doing the following:
- File an I-130 relative petition with the applicable USCIS Service Center.
- You cannot file for the green card until the priority date on the approved I-130 becomes current (i.e., the date that you filed the relative petition is current based on the Department of State Visa Bulletin)
There may be a long wait period before the visa number will become current.
- You need to be a U.S. Citizen over 21 years of age and you must have legally adopted the child prior to the child’s 16th birthday.
- If the child is already in the U.S., legally entered after inspection, but is currently undocumented, you must be able to prove that the child has physically lived with you, and that you had legal custody of the child for at least two years prior to filing the petition. If the child is outside the U.S. you must also prove that the child has physically lived with you, and that you had legal custody of the child for at least two years prior to filing the petition.
- If the child is not currently in the U.S and the child is an orphan you must prove that the child’s parents are deceased, have abandoned the child or have terminated their parental rights to the child. An orphan petition does not require that the child had physically resided with you and that you had legal custody of the child prior to the filing of the petition. In addition, any child under the age of 18 who is adopted by a U.S. Citizen and enters the United States automatically becomes a U.S. Citizen.
- If the child entered illegally or with a false passport you should contact an immigration attorney to see what relief applies under the law.
- Filing an immigration petition for an adopted child can be a very complicated process, particularly if you are trying to adopt a niece, nephew or other family member.
- Ensure you meet all of the criteria. It is recommended that anyone considering adoption of an immigrant relative child should seek legal counsel before beginning. There may be other options available that you have not considered.
Attorney Jon Jessen and his staff help their clients navigate Family Based Petitions.
Schedule your consultation today. Call 1-203-348-3262 or schedule online.