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Tatiana Mendez, Esq.

What Are The Different Options To Enter And Live In The United States Through A Family Immigration?

The most common option is receiving a visa through an immediate relative (a spouse, a child, a parent) who is already a U.S. citizen. The number of immigrants in this category is not limited each year, so the United States receives tons of these visa applications. Another option is the family preference visa. These visas are for specific, more distant family relationships to the U.S. citizen or, for some specified relationships, to a lawful permanent resident. The number of family preference visas is limited each fiscal year, so the timing on these can be important.

If you have a fiancé outside of the United States, then there is also the possibility of the K-1 Fiancé Visa, which allows U.S. citizens to petition for their future spouse to immigrate here. This visa requires the parties to marry within 90 days after the fiancé immigrates.

How Does The Family-Based Immigration Process Generally Work?

In this immigration process, there are two interested parties: the petitioner and the beneficiary. The petitioner is the U.S. citizen or lawful permanent resident who will sponsor the beneficiary, the foreign family member, to come to the United States. The petitioner asks the government to allow the beneficiary to immigrate and has to prove the existence of the qualifying relationship. This is done with the Form I-130. If the form is approved and the visa is available, then the petitioner can apply for a Green Card for the beneficiary. I assist clients who are applying for a Green Card from inside the United States through a process called Adjustment of Status.

For example, if a U. S. citizen wants to petition for their parent to come from another country to the United States, the U.S. citizen has to prove that this potential beneficiary is actually their parent by submitting a thorough list of documentation showing that familial relationship. The documentation for proving a parental relationship is one of the most straightforward and includes documents such as a birth certificate. Once the petition is approved, the U.S. citizen’s parent can come to the United States, and then we can adjust their status to obtain their Green Card.

What Is Considered Family When Applying For A Family-Based Green Card?

If you’re a U.S. citizen, you can file an immigration visa petition for a spouse, a parent, a brother or sister, or an unmarried son or daughter under the age of 21. If you’re a lawful permanent resident, you can only file an immigrant visa petition for a spouse or for an unmarried son or daughter under 21.

What Are Some Of The Most Common Reasons A Family-Based Visa Would Be Denied?

Generally speaking, family-based visas are the simplest because you either qualify under the relationship, or you don’t. One common reason that a family-based visa would be denied is a lack of information providing proof to determine eligibility for the visa. Another reason could be an incomplete application. The family relationship is not the only requirement for someone to be permitted to immigrate to the United States. The visa could also be denied because the applicant has something in their history preventing the approval; certain criminal activities will bar somebody from being eligible for the visa. Additionally, if someone misrepresents a material fact in their petition or have committed some kind of fraud in the application, that will be a basis for denial, as well.

Why Is It Critical To Hire An Experienced Immigration Attorney To Help My Family Immigrate Versus Trying To Do This On Our Own? What Are Some Of The Biggest Pitfalls You See People Fall Into?

It is extremely important to have someone experienced to represent you rather than just trying to figure it out because the process is extremely complex. Immigration is statutory-based, which means that there is one correct way of doing things. There are many forms, fees, and documents, and everything has to be precise and perfect when you apply. Immigration law is extremely convoluted, with many exceptions and areas that require careful consideration and analysis. There are even areas in immigration that seem to contradict one another, and you have to have a strong legal background in immigration to know what the best option is.

Additionally, the requirements for different areas of immigration change often. The forms sometimes expire, and if you don’t know that, you could be filing a form that’s not even valid, which would cause your application to be denied. Any delays in your petition ultimately cost you more money and waste time. You’re much more likely to have your petition accepted the first time around, and with fewer headaches, if you have an immigration attorney.

Attempting the process on your own can also have pretty serious consequences that are difficult, if not impossible, to reverse later. It’s not uncommon for people to apply and then later find out that there was something that made them ineligible.

If Someone Is Denied The First Go-Around, Do You Appeal Or Do You Start The Whole Process Over?

Your course of action would depend on the reason for the denial, how much time has passed since the date of the decision, and your reason for wanting the decision changed. There is a small window of time during which an appeal or motion may be filed and USCIS does not provide extensions. An appeal is a request for a different authority to review a decision.

A motion to reopen is a request for the decision-rendering office to review its decision based on new relevant facts that were not previously submitted. The motion to reopen can be filed if an application was denied due to abandonment. Abandonment often occurs when someone fails to respond on time or at all to a request for evidence or a notice of intent to deny.

A motion to reconsider is a request to the decision-rendering office to review the decision based on an incorrect application of law or policy. This type of motion requires supporting citations to regulations, case law or statutes. There is no consideration of new facts or evidence in a motion to reconsider.

There are some reasons for denial that are absolutely fatal, meaning there’s no remedy. Deciding what course of action to take requires an analysis of all of the surrounding facts and law. An immigration attorney would be the best person to analyze the case and look at everything that was filed to determine what could be done better or differently in order to get an approval.

If Someone Is Still In The United States When Their Visa Expires, Will That Be An Issue When They Apply For A Family-Based Visa? How Big Of A Problem Is Being Here In The US Illegally?

The answer depends on the situation and the status of the petitioner. If someone overstays a visa but is married to a U.S. citizen, USCIS forgives the overstay of the expired visa. USCIS prioritizes U.S. citizens and therefore has an exception where the issue of an expired visa is wiped clean. Let’s look, however, at that same exact situation, but this time, the person who overstays their visa is married to a lawful permanent resident. Even though lawful permanent residents can also petition for their spouse to get a green card, the overstay is not forgiven in this case because the lawful permanent resident does not receive the same exception as a U.S. citizen.

Someone at risk of overstaying their visa at any point should apply for an extension to prevent their visa from expiring while they’re still in the United States. Overstaying could lead to a later denial of their Green Card petition.

For more information on Family Based Visas in Virginia, a personalized case evaluation is your next best step. Get the information and legal answers you are seeking by calling (757) 289-2499 today.

 Tatiana Mendez, Esq.

Call Us Now For A Personalized Case Evaluation
(757) 289-2499