The Nemecek Firm offers high-quality and affordable representation to U.S. citizens, lawful permanent residents and their family members in the area of family-based immigration. Recognizing the importance of reuniting families, the firm works closely with clients to provide personalized services and alleviate anxiety which is inherent in the immigration process. The Nemecek Firm is experienced in all areas of immigration law and thus is able to spot critical issues in complicated cases which may initially appear straightforward.
To promote family unity, the immigration laws provide avenues to permanent residence on the basis of certain family relationships. In general, there are two types of family-based immigrants: (1) immediate relative immigrants; and, (2) preference immigrants. There is no numerical limit on the number of immigrant visas (green cards) available to immediate relatives. This means that immediate relatives do not have to wait in line to obtain a green card. Preference immigrants, on the other hand, are subject to annual numerical limits, which can result in long delays, oftentimes many years.
Immediate relatives include spouses, widow(er)s, unmarried children (under the age of 21), and parents of U.S. Citizens (over the age of 21). In order for a foreign national immediate relative to obtain a green card, the U.S. citizen relative is required to file a petition with USCIS (I-130 petition). A foreign national who is present in the U.S. may concurrently apply to adjust his or her status to that of a lawful permanent resident (Form I-485), provided the foreign national is otherwise eligible for adjustment. Foreign nationals residing abroad and certain relatives who are not eligible to adjust status in the U.S. may complete immigrant processing at a U.S. embassy or consulate abroad.
Foreign national spouses applying for green cards based on marriages to U.S. citizens face enhanced scrutiny. Spouses who apply to adjust status in the U.S. are required to appear for an interview with USCIS with their U.S. citizen spouse to demonstrate the bona fides of their marriage. In other words, they must show that their marriage is not a “sham marriage” which was entered into solely for the purpose of obtaining immigration benefits. Spouses who complete immigrant processing at U.S. embassies and consulates abroad are required to appear for an interview with a consular officer. They must prove the bona fides of their marriage through their responses to questions from the officer and documentation evidencing the relationship.
A spouse who has been married to a U.S. citizen for less than two years at the time his or her green card is approved is issued a conditional permanent resident card. The conditional permanent resident card is valid for two years. Within 90 days of the expiration of the conditional permanent resident card, the foreign national spouse and U.S. citizen are generally required to file a joint petition (I-751 petition) with USCIS to demonstrate the bona fides of their ongoing marital union. A waiver of the joint filing requirement is available for cases which present the following circumstances: (1) extreme hardship would result if the foreign national is deported and extreme hardship occurred during the period of conditional residency; (2) the parties entered into the marriage in good faith, but the marriage terminated (i.e., irreconcilable differences resulting in divorce); and, (3) the parties entered into the marriage in good faith, and during the marriage, the foreign national spouse or child was battered and/or subjected to extreme cruelty perpetrated by the petitioner. Additionally, untimely filings may be excused in cases involving compelling circumstances.
In order for a preference immigrant to apply for a green card, an immigrant visa number must be available for his or her preference category. Because the demand for green cards exceeds the supply, there is a backlog in the availability of immigrant visas for family-based preference immigrants. The U.S. Department of State announces the number of visas that are available for each immigrant visa category through a monthly report, which is called the “Visa Bulletin.” For an explanation of the prefer- ence system and visa bulletin, visit the following link: Visa Bulletin & Preference Categories.