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Family Based ImmigrationFamily-sponsored immigration involves a qualifying relative (a USC or LPR) who files a petition to sponsor a qualifying family member for permanent residence (a/k/a "green card"). Generally, family-based residency is restricted to children, spouses and parents of a U.S. Citizen ("USC"), or legal permanent resident ("LPR"). If a parent sponsors, a son or daughter must be at least 21 years of age. If applying for a child, the child must be under 21 years of age at the time of filing. For immigration purposes, a "child" includes a stepchild, adopted children, children born out of wedlock and legitimated children. This special definition of "child" creates benefits for not only the "child" but also parents, siblings of the "child". There are special issues only a competent immigration attorney may understand regarding eligibility to immigrate by a family member. Especially complex issues include the concept of "legitimization", involving countries that eliminate "born in or out-of wedlock" distinctions (such as El Salvador), foreign adoptions are concerned. It is never advisable to experiment with your family-member’s case without seeking legal advice. A widow(er) married to a USC (for at least 2 years) may apply under certain circumstances. A battered spouse or child who resided with a USC/LPR spouse/parent may apply under certain circumstances may self-petition, that is, will not have to depend on the batterer to file the petition. There are some instances where a family member is already in the U.S. but entered without inspection ("E.W.I."), or perhaps entered with inspection but overstayed the period of authorization on his/her visa. Some of these cases present tricky issues regarding waivers of unlawful presence ("ULP") three and ten year bars. Some of these cases may involve remedies under the LIFE Act provisions of 245-I and may proceed to adjust status from within the U.S., while others may require waivers and adjustment of status ("AOS") at a consular processing. If a family member has been previously deported and re-entered, other tricky issues arise regarding waivers, permanent bars to admission (and AOS). Only a competent immigration attorney may advise you after careful consideration of the particular facts of your case. These cases present different results depending upon BIA and federal circuit court treatment. If your relative may not apply for his/her waiver in conjunction with an AOS application in the U.S., you face the decision of whether to consular process, or wait for a change in the law. An immigration lawyer is needed to assess your chances of successfully winning a "waiver case" at the consulates based upon your individual circumstances. In the context of consular processing, a "visa" is a "green card", or permanent residency. In the context of AOS, a "visa" may allow the relative (spouse or children) to enter the U.S. to allow the AOS process to continue until the "green card" or permanent residency is granted (see: K-1 fiancé, K-3 Spousal visa, or V-visa. One of the benefits of consular processing is speed. A petition may be approved and your relative will enter with his/her residency completed often in is as little as six to eight months in comparison to three to five years at the USCIS offices. Availability for a visa to enter the USA as an LPR, may depend upon the availability of a visa (see: Visa Numbers). |
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