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Family-Based Petitions

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1. Permanent Residency through Marriage To US Citizen
An alien married to a US citizen can obtain a green card/permanent residency, provided that the spousal relationship is established and the alien spouse qualifies to be lawfully admitted into the United States. However, if the alien entered the United States illegally, section 245(i) of Immigration and Nationality provides amnesty for a person who has unlawfully entered the United States. Under that provision, an illegal alien is eligible for permanent residency, provided that, on or before April 30, 2001, he or she filed a visa petition (I-130, I-140 or I-360) with the Immigration and Naturalization Service (INS) or a labor certification application with the Department of Labor (DOL). An illegal alien can also adjust his or her status in the United States by paying a $1,000 penalty assessed for an immigration status violation. However, in order to be eligible for a section 245(i) adjustment of status, each applicant, who submitted an application after January 14, 1998 and before April 30, 2001, must prove that he or she was physically present in the United States on December 21, 2000.

The application procedure, which involves many steps, is initiated by filing various forms and supplemental documents with the United States Citizenship and Immigration Services (USCIS).

Once the required papers are filed, the USCIS will perform a complete background check, including a search for criminal convictions. While the background check is in progress, the USCIS will issue a work permit, after which a fingerprinting appointment and finally the green card interview will occur. During the interview, the immigration officer will determine whether the marriage is bona fide or fraudulent, intended solely to get a green card. The couple must provide the USCIS with evidence of the relationship. If the officer is satisfied, a green card will be granted. However, if the officer is not convinced about the relationship, a detailed second interview will be conducted, during which the parties will be questioned separately. Their answers will later be compared for consistency. If the applicants have been married fewer than two years, a conditional green card will be issued for two years.

Within ninety days preceding the second anniversary of the issuance of the conditional green card, both spouses must petition to remove the conditional basis of their residency to receive the permanent resident status. Based upon its review, the USCIS may waive the second interview and approve the petition. If not satisfied, another interview of both the alien and the alien’s spouse will be conducted to ensure that the marriage was not entered into solely for immigration purposes.

2. Permanent Residency through Marriage to Us Permanent Resident or Green Card Holder
An alien married to a permanent US resident or green card holder can obtain a green card and permanent residency status by establishing the validity of the marital relationship. The procedure is the same in this instance as when an alien is married to a US citizen, although the green card interview in this instance will take approximately five to six years, and no work authorization card or Social Security number will be issued during that interim period. However, under the Legal Immigration and Family Equity Act (LIFE), a new temporary “V” non-immigrant status allows the spouse and minor children of lawful permanent residents waiting in the United States or abroad to be granted work authorization. To qualify, the green card petition must have been filed before December 21, 2000.

3. Permanent Residency Through Other Family Members
Green cards can also be obtained through other immediate family members, such as a parent, brother, sister, or child of a United States citizen, The sponsor must be at least twenty-one years old and cannot be the brother or sister of a permanent resident alien. The waiting period can be as long as twelve years, depending upon the age of the applicant.

4. Permanent Residency through Fiancée Visa
A US citizen, who is engaged to marry a foreign citizen, can apply for a fiancée visa (K1 Visa) for ninety days, provided that they actually marry within this period. No extensions are permitted for this visa. If the marriage does not occur within the ninety day period, the fiancée must return to his or her home country. However, the fiancée will not be precluded from applying for another fiancée visa in the future, although the US citizen will have to file the International Marriage Broker Regulation (IMBRA) waiver if filing for another fiancée visa within two years. Green card holders or permanent residents of the United States are not eligible to file for a fiancée visa.

Once the US citizen and the fiancée are married, they must apply for an adjustment of the status of the spouse of the US citizen to obtain permanent residence status. If they have been married for less than two years when they apply, a conditional green card is granted. After 1 year and nine months of receiving the conditional green card, the spouse must apply for removal of the condition to receive a permanent residency card.