MIAMI FAMILY IMMIGRATION ATTORNEYS
Davis & Associates are your immigration attorneys of choice in Miami and bordering areas. Our attorneys provide expert legal counsel for all facets of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals.
FAMILY IMMIGRATION PRACTICE
For many people, the easiest way to acquire a US Immigration Visa or Green Card is through Family Sponsorship.
Some kinds of family sponsorship include
- Green Card through Marriage
- I-485 Child Adjustment of Status
- Fiance Visa
For your family based green card or visa, call the Davis & Associates' Miami Family Immigration Lawyers that care about you and your family.
For people who would like to know how an immigrant visa (also described as permanent residency or a "green card") can be obtained through a relative.
Citizens and permanent residents of the United States have the option to petition the federal government for an immigrant visa for particular family members. U.S. citizens can petition for more categories of family members than permanent residents can.
The amount of time between the date the petition is filed and the date when the family member actually receives the immigrant visa can vary wildly—anywhere from half a year to 20 years or more.
The wait time is determined by the immigration status of the petitioner (are they a citizen or a permanent resident?), the category of family member they are petitioning, and what nation the family member is from.
Here are the names and descriptions of the family-member categories that citizens and permanent residents may petition for:
US CITIZEN PETITIONERS
- Unmarried child under 21 years old
- Parent (the US citizen petitioner must be at least 21 years old)
- Unmarried child over 21 years old (and his or her children)
- Married child of any age (and his or her spouse and children)
- Siblings (and his or her spouse and children)
PERMANENT RESIDENT PETITIONERS
- Unmarried child under 21 years old (and his or her children)
- Unmarried child over 21 years old (and his or her children)
Every year, the US government authorizes a set number of immigrant visas for the family-based categories. Every year, more citizens and permanent residents file petitions for their family members than there are immigrant visas authorized. This has created a years-long backup in the system.
The government assigns each of the different kinds of family petitions a priority. Some family relationships have a higher priority than others, meaning those family members will generally get their permanent residency faster.
The government also prioritizes the petitions for immigrant visas based on the country that the family member is immigrating from. Mexico, China, India, and the Philippines have individual waiting times because family members from these countries make up a large number of the requested immigrant visas.
The family relationship categories with the highest priority have a special name. They're called "immediate relatives." The spouses, unmarried children under 21 years old, and parents of U.S. citizens are immediate relatives. Immediate relatives have immigrant visas immediately available to them. Once the preliminary petition by the U.S. citizen is approved by U.S. Citizenship and Immigration Services, the immediate relative may immediately file an application for the immigrant visa-- sometimes it can even be filed together with the initial petition.
Family relationships which are not immediate relatives, are called "preference categories." The people in preference categories must wait until an immigrant visa is available for them before they can make an application for one. Every petition filed by a citizen or permanent resident which is approved is given a priority date (generally, it's the date on or near when the petition was received by USCIS). The U.S. Department of State releases a visa bulletin monthly, which lists each preference categories with a date.
Immigrant visas are accessible to anyone in that preference category whose priority date is earlier than the date on the visa bulletin. Waiting on a priority date to become current can take many years.
Once an immigrant visa is available to the intending immigrant family member, other factors such as the person's U.S. immigration history, criminal history, and current location will identify where he or she qualifies for permanent residency and where the application should be filed-- inside or outside of the United States.
It is essential that you seek advice from an attorney who is an expert in U.S. immigration law before filing petition or application with the government.
Certain people battered by their U.S. Citizens and Legal Permanent Resident family members may qualify for an immigrant visa.
Immigration through a U.S. citizen or permanent resident family member usually calls for that the citizen or permanent resident file a petition and see the immigration process through to the end, often with an interview performed by USCIS.
This means that the citizen or permanent resident has complete control of the immigration process for their family member; they must be the one to initiate the process and can terminate it any time.
In relationships where domestic violence is present, this control can be abused by the citizen or permanent resident as one more way to hurt the loved one through threats of revoking or delaying the immigration process, or of deportation.
Congress passed the Violence Against Women Act (VAWA) in order to help undocumented victims of domestic violence gain permanent resident status independently of their abusive citizen or permanent resident family member.
The categories of people who can file VAWA petitions are:
- Battered spouses of US citizens and legal permanent residents can apply. The battered spouse’s unmarried children under the age of 21 can be included in the application, regardless of whether the child suffered abuse or not.
- Parents of children who have been abused by their citizen or permanent resident step-parents can apply. The parent’s other unmarried children under 21 can be included in the application, regardless of whether the child suffered abuse or not.
- Unmarried children under 21 who have been abused by their citizen or permanent resident parents can apply. The child’s unmarried children under 21 can be included in the application, regardless of whether the child suffered abuse or not.
- Parents who have been abused by their adult US citizen sons or daughters can apply.
A VAWA petition is filed on Form I-360 and requires fairly extensive documentation. There are particular requirements that have to be proven in order for USCIS to approve a VAWA petition. Typically, the requirements are:
- Proof of the abuser’s immigration status. The abuser’s status can be proven with a copy of his or her birth certificate, passport, naturalization certificate, or permanent residency card.
- Proof of the relationship between the abuser and the undocumented person. This includes marriage certificates, birth certificates, and divorce decrees.
- Proof of the abuse, and the effect of the abuse on the undocumented person. Typical proofs include police reports, arrest reports, protective orders, restraining orders, court documents, medical records, doctor and/or hospital bills, pictures, news reports, counseling letters, and letters from people who were aware of the abuse at the time it occurred.
- Proof of the good moral character of the undocumented person. USCIS requires that the VAWA applicant obtain a police clearance letter from every city where the applicant has lived for the past three years, if the applicant lived in that city for six months or more.
If the VAWA petition is approved, the battered spouse, child, or parent may be able to apply for permanent residency based on the petition once the priority date is current. The unique immigration, criminal, and medical history of each applicant must be fully examined in order to determine if, how, and when they can apply for a green card.
Adjustment of status is the process of applying for an immigrant visa (“green card”) inside the United States. How can an undocumented immigrant apply for adjustment of status?
It is necessary to define an undocumented immigrant as someone who is living and/or working in the United States and either entered illegally or is now out of status.
When an immigrant visa becomes available to an undocumented person (through a family relationship, an employer, etc.), the immigrant will need to pinpoint the suitable process to pursue in order to apply for the immigrant visa. The visa can be obtained either outside or inside the United States.
There are two ways for an undocumented immigrant to apply for permanent residency in the United States and avoid needing to return to their nation of birth/citizenship.
IMMEDIATE RELATIVES WHO ENTERED LEGALLY
Immigration law allows certain people to apply for adjustment of status regardless of the fact that they are in the US illegally and/or have worked in the US without authorization, so long as the person can prove that they entered the US legally. These people are called “immediate relatives” and include:
- Spouses of US citizens.
- Unmarried children under 21 years old of US citizens.
- Parents of US citizens (citizen must be at least 21 years old).
An immediate relative who is applying for permanent residency through their US citizen spouse, parent, or child and who can prove that they were inspected an admitted at a port of entry by US immigration, has the right to apply for permanent residency by submitting Form I-485 inside the United States.
PEOPLE WHO ARE PROTECTED BY 245(i)
For those people who entered legally, failed to maintain legal status, but are NOT immediate relatives, and for those people who entered illegally, there is still a possibility of applying for adjustment of status.
Section 245(i) of the Immigration and Nationality Act allows such a person to adjust their status to permanent resident if they meet certain qualifications and pay a $1000 penalty fee.
A visa petition or labor certification must have been filed on your behalf on or before April 30, 2001. If the visa petition or labor certification was filed between January 15, 1998 and April 30, 2001, the applicant must verify that they were physically present in the United States on December 21, 2000.
If the visa petition or labor certification was filed before January 15, 1998, the applicant does not need to prove that they were in the United States on any particular date.
The person does not have to be seeking an immigrant visa through the petition or labor certification filed before April 30, 2001. That petition or certification can be used as the means to qualify for adjustment of status under 245(i) while obtaining an immigrant visa through a petition filed many years later, for example, by a recently acquired U.S. citizen spouse.
If someone filed a visa petition or a labor certification for you prior to April 30, 2001, be sure to consult with an experienced immigration attorney in order to determine if you are protected under 245(i).
NOT EVERYONE WHO QUALIFIES TO APPLY FOR ADJUSTMENT OF STATUS WILL QUALIFY FOR PERMANENT RESIDENCY
Meeting the requirements to apply for adjustment of status in the United States is only part of the process. The applicant still needs to qualify for permanent residency.
Immigration law determines several things that will prevent a person from obtaining permanent residency, including a person's criminal, immigration, and medical history.
It is extremely important that a person meet with an attorney experienced in immigration law before applying for any immigration benefit, including adjustment of status.
The consequences of applying for something that you don't qualify for could be extreme, including deportation.