Most US Citizens have a misunderstanding of what it takes to become a Citizen. In fact, many people who aren't familiar with the process think that if a US Citizen marries somebody who is from another country, that the new spouse automatically becomes a US Citizen. ABSOLUTELY NOT! It is not an automatic process.
This is the second in a series of articles about Consular Processing. The first article, "Consular Processing - From the U.S. to Ciudad Juarez, and Back Again!", discussed the basics. This article will discuss the first steps to take for a family member of a US Citizen to become legal. First, we need to discuss what family members can be “petitioned” or “sponsored” by a US Citizen.
Who can “Petition” or “Sponsor” an immigrant?
This article deals with family-based immigration. In that context, only certain family members can “petition” or “sponsor” an immigrant. Another misconception many US Citizens have, is that as a US Citizen, they can somehow “sponsor” an immigrant, who may be a friend or acquaintance, and that they can help the immigrant get legal status. The answer to that is NO. There must be either a family based relationship or another visa must be requested.
There are two basic categories of relatives: Immediate relatives, and Preference Category Relatives. The distinction is important because immediate relatives have no limit to the number of visas that can be issued. Family Preference relatives, on the other hand, are subject to limits and may have to wait years before their visa will become available.
The close relatives that are considered “immediate” under immigration law are unmarried children under 21 of US Citizens, spouses of US Citizens, and parents of US Citizens over 21 years of age. This means that foreign-born son or daughters who are 21 or older are not considered “children” for purposes of immigration law, and are therefore not immediate relatives.
Family Preference relatives
There are four basic categories of Family Preference relatives. They are:
- F1 Family First Preference Unmarried sons and daughters (21 or older) of US Citizens, and their minor children
- F2 Family Second Preference
- F2(A) Spouses and minor children, of Lawful Permanent Residents (green card holders)
- F2(B) Unmarried sons and daughters (over 21 years old) of Lawful Permanent Residents (green card holders)
- F3 Married sons and daughters (regardless of age) of U.S. Citizens
- F4 Brothers and sisters of adult US Citizens
A few notes on the preference categories: First, notice that a Lawful Permanent Resident cannot submit a petition for a married son or daughter. Only a US Citizen can petition a married child. Second, the political climate recently has seen an increase in attacks on the family preference system. Many want to do away with the system and replace it with a merit based system. In fact, one of the biggest targets is Family Preference Category 4, siblings of US Citizens. If the law were to change and the preference categories are scrapped, then the only chance of being able to benefit from them is to have a petition filed. Mind that there is no guarantee the petition will move forward if the program is scrapped, but there will be strong argument that your reliance on the law should require your petition to still be honored. Lastly, some preference categories have an extraordinarily long wait time. There is a bulletin that is released monthly called the Visa Bulletin, and it lists the priority dates of petitions that are currently being processed.
The priority date is usually the date that your petition was received by USCIS and thus is the way your place in line is marked. Go to the US Department of State website for the latest current visa bulletin.
What is the I-130 Petition?
The petition is filed on a form I-130, found at the official USCIS website. Do not pay for a copy of this form! It is free to the public and anyone charging to get this form is a scammer. The I-130 is the first step in the legalization process. The form I-130 is filed by the US Citizen (or Lawful Permanent Resident), known as the “petitioner” on behalf of his or her relative, known as the “beneficiary”, whether it be an immediate relative whose visa is always available, or whether it be a preference relative, who may have to wait for the visa to become available. The information gathered by the I-130 is basic biographic information about the petitioner and the beneficiary, marital data, addresses, etc. Additional info is gathered on the I-130A for spouse petitions including address and work history.
Some documentation is required to be submitted with the I-130, including birth certificates of the parties, passport photos of the parties, marriage licenses, proof of a bona fide marriage in spousal cases. A list of required documents is found in the I-130 instructions at the USCIS website. Don't forget to save a complete copy of everything you submit for your records.
For many years, the I-130 petition was a 2-page form, where the petitioner (the US Citizen or LPR) filed for the beneficiary (the relative). The latest revision of the form (2/27/2017) has seen it jump to twelve pages! In addition, if the petition is filed on behalf of a spouse, a new form, an I-130A must also be completed and submitted together with the I-130.
The purpose of the I-130 Petition is very simple and very clear. It merely 1) establishes the legal status of the petitioner (either US Citizen or LPR) and 2) asks DHS to recognize the relationship.
A “standalone” I-130 petition (as opposed to a one-step adjustment as discussed below) and supporting documents and the fee (currently $535) are mailed to one of two lockboxes depending on where you live. Phoenix or Chicago. Check the USCIS webpage for the correct address. Remember that UPS and FedEx cannot deliver to a post office box! There are direct addresses for couriers.
Once submitted, DHS will process the application. After the form is submitted, a receipt notice should arrive in a few weeks with a receipt number and priority date. They first process petitions for immediate relatives, and that processing time varies but is generally several months. If a petition is for a preference category where a visa is not currently available, the petition may not be adjudicated until later on.
If more information is required, a Request for Evidence (RFE) may be sent out, requiring more proof of relationship or other items. Failure to respond in the right timeframe will result in your application being denied. Once the petition is approved, you will receive the I-130 approval notice.
An approved I-130 does NOT mean that the visa is currently available. It does NOT mean that the beneficiary will be approved. It does NOT mean that no more evidence of a valid marriage will be required. It only establishes the above two criteria - the legal status of the petitioner, and the relationship between the petitioner and the beneficiary. USCIS and DHS will accept your I-130 and adjudicate it, and even may grant it, even if there is no legal way for the beneficiary to complete the process and obtain permanent residency. Eligibility for legal status is a separate analysis and is done in a separate step of the process.
What if the beneficiary is already in the United States when the petition is filed?
Immediate relatives with a legal entry or with 245i grandfathering can stay in the U.S. and apply for their greencards without having to leave the country!
Immediate relatives already in the U.S. who can prove they were admitted through the proper channels (an immigration checkpoint) can apply for what is called Adjustment of Status while in the U.S., and they can become Lawful Permanent Residents without leaving the country. This is true even though they may have overstayed the time allowed by immigration or even if they have unlawfully worked in the U.S. (CAUTION: Claiming to be a US Citizen in order to get a benefit is a very serious offense and causes ineligibility for residency. If you think this may apply, then talk to a lawyer.)
This is not the case for Preference Relatives. Many people miss this distinction and think that even if they entered the U.S. legally, when some other preference relative files for them, they can become legal. This is incorrect because when you are in a preference category, rather than an immediate relative, you must also be in status in order to apply for a green card. Otherwise, you must have a waiver for unlawful presence and other immigration violations. In addition, only having a US Citizen child is not generally enough to get the waiver. See my blog article titled “My US Citizen Child is Finally 21! Can he or she apply to get me legal?” for more information.
If you are concerned that you may not always have remained in lawful immigration status, you need to speak with an attorney.
Another issue that many attorneys and clients alike seem to miss are those clients who have entered through a border checkpoint, but do not have a valid visa. Sometimes they may be sitting in the back seat of a car and be waived through, or even have false documents that are presented. In a legal quirk, the fact that they presented themselves to be inspected is enough to qualify for a legal entry. This means they may be eligible to Adjust their status from within the United States. This is true due to a Board of Immigration Appeals case called Matter of Quilantan. There will soon be a blog article on this issue. Keep in mind that you may have to apply for other types of waivers for having presented false documents to an officer. Consult with your attorney if this applies to you.
If a beneficiary is inside the US and needs to go to the consulate, he or she should never leave the US without talking with a lawyer. There are unlawful presence bars, permanent bars, and other very severe consequences that are triggered by a departure from the US, even if one is undocumented. I always tell my clients that I will not send anyone outside the US voluntarily unless there is a reasonable likelihood they will return. Most of the time we are pretty certain that they will be approved for the visa before they depart the US because, for example, the provisional waiver is approved prior to their departure.
Most of the time, an interview is not required for an I-130 to be adjudicated and approved. However, if both parties are in the United States, the local USCIS field office in limited circumstances may schedule an interview.
Note that if the beneficiary is inside the United States and eligible to adjust status, the I-130 petition does not need to be filed first. It is much more beneficial to file the I-130 petition along with the I-485 Application for Permanent Residence in what is known as a one-step filing. This is very beneficial because in three months, the applicant can obtain work authorization and the entire process can be completed much shorter than if the applications were submitted separately, as you'd have to wait until the I-130 gets approved before filing the I-485. In most cases, those eligible to file a one-step adjustment should do so, although in some circumstances a two-step process may be beneficial.
If the beneficiary is outside the United States, or is ineligible to adjust status from within the United States, his or her approved I-130 petition and file will be sent to the National Visa Center for further processing. The file will remain with the National Visa Center until the priority date becomes current. Remember that for immediate relatives, your case will immediately be ready for further processing, while preference category relatives must wait his or her “turn in line” before proceeding. Your priority date is found on your I-130 receipt notice.
The applicant will be notified by the National Visa Center once the case is ready for further processing. Additional forms, documents, and fees must be submitted at this stage. Once all of the documents are received, the National Visa Center will then forward your case to the US Consulate for scheduling of the interview, where an officer will make a decision on your immigrant visa. The US Department of State controls those interviews as opposed to adjustments of status, done within the United States and adjudicated by USCIS in the Department of Homeland Security.
The I-130 is an essential first step in your overall application for permanent residence. This step establishes the legal status of the petitioner and the relationship with the beneficiary. Next, the beneficiary who wants to become legal needs to see if they need to leave the U.S. to get a visa. If they do, there are some very important things to do first, such as seek a provisional waiver, if necessary. The next steps are covered in the next part of the blog series, part 3.
Stay Tuned for Part 3 of the series on Consular Processing, coming soon!