FAMILY VISAS

FAMILY VISAS PROCESS

ADOPTION  

FAMILY VISAS

There are four family-sponsored preferences in American immigration law: 

This article will mostly focus on the second preference.

For United States immigration law purposes, a marriage must be not only legally valid in the jurisdiction in which it which it was celebrated, such that parties were of marriageable age, parties not already married to others, ceremony performed by authorized official, etc., but also factually genuine. To determine whether the marriage is factually genuine, the immigration service uses a standard test: whether at the inception of the marriage, the parties intended to establish a life together.

The immigration service recognizes two types of sham marriages. One is a bilateral sham marriage, where the intending immigrant spouse (the “beneficiary”) pays the citizen or a Lawful Permanent Resident spouse (the “petitioner”) to enter into the marriage. The other type of sham marriage is unilateral, where the beneficiary spouse deceives the petitioner spouse as to the beneficiary’s feelings and intentions.

To put a hurdle on sham marriages, Congress introduced the Immigration Marriage Fraud Amendments, which in turn introduced conditional permanent residence status. Conditional permanent residence means that whenever a noncitizen receives a Lawful Permanent Resident status as an immediate relative as a family-sponsored second preference immigrant, or a as a fiancé of a United States citizen, by virtue of a marriage that is less than two years old, the resulting permanent residence will be subject to certain conditions. The conditions impose that if at any time during the individual’s first two years of permanent residence, the Attorney General finds that the marriage was entered into for the purpose of procuring any sort of an immigration benefit or status, or that the marriage has been judicially annulled or terminated (other than the spouse’s death), or that a fee (other than an attorney’s fee) was given for filing the petition, then the Attorney General must terminate permanent resident status. Moreover, if it is ever found that a beneficiary ever entered into a sham marriage in order to procure an immigration benefit, that person can never become a Lawful Permanent Resident.

Not all married couples obtain conditional residence status when applying for the immigration benefit through a marriage. A couple is only granted conditional residency if they were married less than two years. After the grant of conditional residency, a joint petition for an interview must be filed to remove the conditions. Sometimes, a couple may be approved without an interview if they waited for the interview more than two years.

As was mentioned earlier, the petition to remove conditional residency must be jointly filed. There are some exceptions to that rule. If a couple goes through a divorce in the interim, they may get a waiver based on good faith marriage or emotional/physical abuse. If the waiver is obtained, then the person applying to get the conditions removed may bypass the joint petition and file on their own behalf. This waiver is obtained frequently in situations of domestic violence and/or abuse.

The United States immigration law does not recognize same sex marriages, therefore, family based immigration and adjusting status of the same sex partner is not possible.

Family based immigration is just one of the ways of obtaining a Lawful Permanent Resident status in the United States. Although, there are some hurdles that exist along the way that families must overcome, it remains to be one of the fastest and easiest way of becoming a Lawful Permanent Resident.

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