Family-Based Visas; Marriage, Fiancé, & Spousal Visas; Removal Defense & Appellate Work
Family-Based Visas
Family-based visa petitions are the most common method of facilitating immigration in the United States.
The family-based immigrant categories are limited to 4 preferences as defined by the Immigration & Nationality Act. The “Immediate Relative” category exists as well, and is not a preference category, so it does not have an annual quota. This is important because the preference categories usually have long waits for visas to become available because of statutory annual quotas limited the number of immigrant visas. Immediate Relatives include spouses of U.S. Citizens, minor children (under 21 years of age at the time the visa is granted) and parents of U.S. Citizens. If you wish to petition for an immediate relative, the visa is always immediately available, and the only delays will be the processing time for filing for adjustment of status (if your relative is in the U.S. and eligible to do that), or for the I-130 and Consular processing for the issuance of the approved visa abroad.
The other categories are the First Preference, which includes unmarried, adult children of U.S. Citizens (recall that minor children are Immediate Relatives, and therefore not part of the preference system or subject to numeric limitations). The Second Preference Category includes the 2A and 2B categories. The 2A Category is for children (under 21) of lawful permanent residents. The 2B category is for children of permanent residents who are over 21, provided they are single. There is no category for a married adult child of a permanent resident. There is, however, a category for a married child of a U.S. Citizen, and it is the Third Preference category. The Fourth and final Preference is for Siblings of U.S. Citizens.
The waiting period for a visa under the preference system is dictated by a publication called the Visa Bulletin. It is published by the State Department on a monthly basis.
Marriage, Fiancé, & Spousal Visas
If you are already married, or are contemplating becoming married to a foreign national, the information in this section will help you plan obtaining the proper visa for your spouse. If you are not yet married, and your fiancé is abroad, the fastest way of properly facilitating their entry will most likely be a fiancé visa. Please visit that section of our website to learn about its requirements.
A Marriage Visa allows the foreign spouse of a U.S. Citizen or U.S. Resident to enter the United States for the purposes of immigrating permanently. Oddly enough, the processing time to gain a spouse’s entry into the U.S. is significantly longer than for a fiancé. Congress created the K-3 visa program to ameliorate the harshness brought about by the long processing times. That program has largely been a failure in that regard; its own processing times offer little advantage to simply applying for a marriage-based visa. Nonetheless, if you are already married, or do not want to pursue a fiancé route for other reasons, the marriage-based visa route will be the only way to gain your spouse lawful status in the United States. Furthermore, if your spouse entered the country legally and has proof of that entry, he or she may be eligible to file for Adjustment of Status without having to leave the United States. The remainder of this section will discuss filing for a spousal visa, and having your spouse receive the visa at the U.S. Consulate abroad.
The Marriage-Based option will take between 8-21 months from the time the I-130 Petition is filed at a USCIS Service Center to the day the Marriage Visa is issued. The process of acquiring a marriage-based visa involves three steps, not unlike the steps for a fiancé visa. First, the I-130 Petition is filed with the USCIS Service Center with jurisdiction over the petitioner’s place of residence. The CIS will send the approval to the Department of State’s National Visa Center, which will send a Packet III to the petitioner for completion. The Packet III must be completed and returned to the NVC in order of it to send the completed file to the U.S. Consulate. The U.S. Consulate will then set an issuance interview for the foreign national. Before examining each of the aforementioned steps in the process, it is important to note than only spouses of U.S. Citizens have access to visas outside of the quota system. This means that if you are a permanent resident wishing to bring your spouse to the U.S., there is a significant backlog in the within the applicable quota category. Although a permanent resident can petition for their spouse, there is an approximate wait of six years for a visa number to become available to the spouse.
STEP ONE: SUBMITTING THE I-130 VISA PETITION AND EVIDENTIARY PACKET
A spousal visa petition is initiated by filing Form I-130. It is submitted to the CIS Regional Service Center having jurisdiction over the residence of the petitioner. If your spouse is in the U.S., and entered the country lawfully, the I-130 can be submitted in concert with your spouse’s I-485 application to adjust status. Processing times on the I-130 vary depending on the volume of petitions in the CIS pipeline, but usually range from 6-12 months. Currently, all I-130 petitions are being routed to the California Service Center for processing.
A packet of materials, including Form G-325 for each person, is submitted with the I-130 petition. It is important to submit a thorough, approvable packet, so that the government does not issue a Request for Additional Evidence, which can increase the time you and your spouse are separated.
STEP TWO: THE VISA APPLICATION PACKET ISSUED BY THE U.S. CONSULATE
The CIS will forward your approval to the Department of State’s National Visa Center. Its function is to assemble the file for the Consulate to streamline the issuance process. The NVC will review the documents filed with the I-130, and will issue an “Instruction Package for Immigrant Visa Applicants. After certain portions of it are returned to the NVC, the applicant will receive a second packet called an “Appointment Package for Immigrant Visa Applicants”, and sometimes a third packet called a “Follow-Up Instruction Package for Immigrant Visa Applicant”. Each of these packets is complex, and must be returned to the NVC with absolute completeness. When all three are returned, the NVC will forward the petition and documents to the consular post designated on the original I-130.
Among the documents required in the packets, are an Affidavit of support (I-824) with more binding, detailed and stringent requirements than ever before. INA §213A, 8 U.S.C. §1183a, 8 C.F.R. §213a.2. The petitioner must be the sponsor and must live in U.S. under CIS regulations. This means it is impossible for a U.S. Citizen living abroad to petition for their relatives. The sponsor or joint sponsor must demonstrate that her income is 125% above poverty guidelines. The petitioner must include copies of tax returns filed with IRS over the previous 3 years if employed in the U.S.
The beneficiary of the petition must submit a medical exam performed by a doctor overseas. It cannot be done in the U.S. 9 FAM 42.66 PN7.
STEP THREE: THE ISSUANCE INTERVIEW
Once in the NVC system, the case will then be processed for the consular post abroad according to the designation as a Beta post, Alpha post or Alpha appointment post. This designation dictates the way the case is processed. The differences are noted below.
Beta posts. These posts process IV cases in the traditional manner through NVC, which send applicants the Instruction Package for Immigrant Visa Applicants (formerly Packet 3) and instructs them to notify post directly when ready to process.
Alpha posts. The applicant first receives an IV Fee Bill for the IV application and affidavit of support processing fee. These fees are returned to the St. Louis address (certified check or money order only.) The payment is processed in St. Louis and forwards the fee payment to NVC. NVC sends the Instruction Package for Immigrant Visa Applicants (formerly Packet 3) and affidavit of support form to the applicant, with instructions to return them to NVC. NVC performs a clerical review of documents submitted to determine if the cases is complete (e.g., all three years’ tax forms present, I-864 signed and notarized, if applicable, DS-230 properly completed, fees paid), then forwards the case to the post. The post makes the IV appointment. NVC uses this process for Manila, Santo Domingo, Georgetown, Port-au-Prince, Guangzhou, Bogota, Ho Chi Minh City, New Delhi, Mumbai, and Chennai. A modified version of the process is used for Ciudad Juarez. (The review of the affidavit of support process is completed by Ciudad Juarez and applicants will not be required to submit missing documents to the NVC.)
Alpha appointment (Alpha plus) posts. NVC does the same processing as for Alpha posts (above) plus the appointment scheduling. In addition, for Alpha appointment posts only, NVC compiles original civil documents (or certified copies) and police certificates. The NVC reports numerically controlled cases as “documentarily qualified,” obtains a visa allocation number, and then sends the appointment letter to the applicant. The applicant completes the physical examination and appears for the interview at post. The original civil documents are returned to the applicant at time of interview at post. The process is in place for Montreal, Tirana, United Arab Emirates, and all posts on the continent of Africa: Abidjan, Cote D’Ivoire; Accra, Ghana; Addis Ababa, Ethiopia; Algiers, Algeria; Antananarivo, Madagascar; Cairo, Egypt; Cotonou, Benin; Casablanca, Morocco; Dakar, Senegal; Dar-es-Salaam, Tanzania; Djibouti, Djibouti; Harare, Zimbabwe; Johannesburg, South Africa; Kinshsa, Democratic Republic of the Congo; Lagos, Nigeria; Libreville, Gabon; Lilongwe, Malawi; Lome, Togo; Lusaka, Zambia; Monrovia, Liberia; Nairobi, Kenya; Niamey, Niger; Ouagadougou, Burkina Faso; Praia, Cape Verde Islands; Tunis, Tunisia; and Yaounde, Cameroon. If “noncritical” information is missing, a note will be made on the DS-230I or I-864, but still be forwarded to the post. If there are critical errors in any of the documents or if attachments are missing, the NVC will send a letter to the attorney of record or applicant, to attempt to obtain all the necessary information or documents needed for a final decision. It will only do so twice. Next, the NVC will perform the requisite background checks and forward the application to the post. The post, or Consulate, will then schedule the interview. The NVC reports that it normally takes two to three weeks after receipt of all documents, to ship completed applications to the consular posts. The file is sent both physically and electronically. The following is a list of documents typically needed for the interview. You should of course check with the post, or with your attorney, to be sure you comply with your post’s mandates. Sometimes, documents simply are not available. The Foreign Affairs Manual lists the documents which are not available in each country, as well as the appropriate authority to issue the documents.
Passport — A passport must be valid for at least six months beyond the date of visa issuance.
Birth Certificate(s) — A certified copy of the birth certificate of each applicant and each child under 21 years of age (even if the child is not applying for a visa) is required. Delayed issuance birth certificates are often accepted at many posts, and are preferred to Affidavits of Birth. If a birth certificate is unavailable, secondary evidence of birth, such as school records, religious records, or affidavits may be used. Police Certificates— Each applicant, age 16 or over, is required to submit a police certificate, if available, from authorities of the country of nationality or current residence where the applicant has resided for at least six months since reaching age 16 and other countries where the applicant has resided for a year or more. U.S police certificates are not required, but may be requested by a consular officer. It is good practice for counsel to obtain the FBI rap sheet for applicants in case the client forgot about a brush with the law while in the United States.
Court and Prison Records — A certified copy of the applicant’s criminal record, and record of confinement in any correctional institution, if any, must be submitted. A complete certified record, including arrest record, complaint, indictment, and sentencing record is required regardless of when the offense occurred or any intervening amnesty, pardon, or expungement. Also be certain to include a copy of the statute under which the client was convicted and sentenced. Be careful to assess admissibility before applying for an immigrant visa. Criminal matters should be discussed in advance with the consular officer. An advisory opinion from the DOS Visa Office should be obtained in advance of the IV interview on questions of inadmissibility.
Military Record — An official record of the applicant’s military service, if any, must be submitted. A record of service conduct and discharge may be required.
Marriage Certificate — A certified copy of the applicant’s marriage certificate, as well as proof of termination of any previous marriage(s) ( e.g. , divorce decree, death certificate, or record of annulment) must be submitted.
Photographs — All applicants must submit at least two photographs, which conform to precise specifications. Additional photographs may be required, depending upon the post (many require four).
Evidence of Financial Support — Evidence of financial support is required to document that an alien will not become a public charge. For most immigrant visa applicants, this evidence may include a letter or offer of employment, bank statement(s), income tax return(s), affidavit(s) of support, and/or proof of ownership of real estate, and other financial assets. An I-134 is required for dependents of employment-based applicants. Certain employment-based applicants and most family-based applicants must submit the far more complex I-864 Affidavit of Support.
I-864 Affidavits of Support — Section 551 of IIRAIRA dramatically changed the rules regarding affidavits of support by creating INA §213A. Affidavits of Support are legally enforceable contracts when completed on Form I-864. DOS has imposed a processing fee of $70 for Form I-864.
The older, less cumbersome version of the Affidavit of Support, Form I-134, is still used for employment-based immigrant visa applicants (without a significant family ownership interest in the petitioner) and on behalf of his or her accompanying family members.
Translations — All foreign language documents must be accompanied by a certified translation. However, most consuls will accept untranslated documents in the language of the country in which the consulate is located. Unobtainable Documents —If the consular officer is satisfied that a required document is unobtainable, the officer may permit the substitution of other satisfactory evidence upon a finding that the document cannot be obtained without hardship. 26 The applicant should document the efforts made to obtain the document in question, such as copies of applications made for missing documents, letters sent to government offices and/or relatives seeking the document in question, and (if possible) a letter from a government office explaining that the document is not available.
Medical Examination — All immigrant visa applicants are required to complete a medical examination performed only by a physician designated by the consular post in the country where the consular post is located. Applicants are advised to bring any available medical records with them. HIV testing is required of all applicants. Infection with the HIV virus is a ground of inadmissibility from the United States, although a waiver may be available. 27 Make sure clients’ required vaccinations have been taken and that the client has a record. Medical exams from USCIS panel physicians in the United States are not accepted for consular interviews—not ever, so do not ask. It is good practice to advise clients to have an HIV test before going abroad to avoid devastating surprises.
APPOINTMENT PACKET AND VISA INTERVIEW
After all the necessary documents have been received and reviewed, a visa number is obtained from the Visa Office in Washington. Then a final appointment (formerly known as Packet IV) is sent either by the NVC or the post. NVC schedules IV appointments for consular posts in Montreal, Albania, Turkey, UAE, and the continent of Africa.
The visa application (DS-230 Part II) is executed at the time of the interview in the presence of the consular officer. 29
Eligibility is determined at the interview. Generally, the consular officer questions the applicant and reviews the documents within the purview of the various grounds of “inadmissibility” contained in INA §212(a). The applicant bears the burden of proof as to admissibility.
Attorney Representation — The right to representation at the visa interview continues to be a matter of controversy and is currently raging in Mexico with the unilateral barring of lawyers from even entering the consulates. This unilateral hostile action was taken without discussion with the immigration bar or affected American citizens and businesses. Consular posts in Canada currently honor the right to counsel and welcome attorney participation out of recognition that attorneys add value to the process in explaining complex facts and the application of the law to those facts. DOS acknowledges that there is an appropriate role for the attorney in the visa process:
In the sometimes-complex world of visas, a good attorney can prepare a case properly, weed out “bad” cases, and alert applicants to the risks of falsifying information. The attorney can help the consular officer by organizing a case in a logical manner, by clarifying issues of concern, by avoiding duplication of effort and by providing the applicant with the necessary understanding of the intricacies of the visa process. . . . 30
During the visa process itself, some consuls will discuss individual cases with attorneys by telephone. Before initiating a dialogue, it is wise to send a fax letter or e-mail to alert the consular officer as to the nature of the case (including case number) and the matter to be discussed.
VISA ISSUANCE
An immigrant visa is valid for travel to the United States for a period of up to six months. 34 In some situations, the visa may be issued for a shorter period. For example, the validity may not extend beyond a date 60 days prior to the expiration of the applicant’s passport, or, when issued to an accompanying child, may not extend beyond the date on which the child becomes 21. 35
Certain aliens are not required to present a passport when applying for an immigrant visa. 36 Similarly, some aliens are also exempt from obtaining an immigrant visa in order to enter the United States in resident status. 37 22 CFR §42.74 provides for issuance of an immigrant visa to an alien not subject to numerical limitations (immediate relative or special immigrant) and for a replacement visa to an alien who was unable to use the visa during the period of validity for reasons beyond the alien’s control.
Visa issuance does not guarantee admission to the United States and the applicant will be scrutinized at the point of entry. In the post-9/11 world, many IV applicants for admission will be subjected to further scrutiny and security checks.
ENTRY TO THE UNITED STATES
Once the immigrant visa is issued, the applicant must enter the United States while the visa is still valid. At the port of entry, the applicant is inspected. INA §204(e) provides that an approved petition does not guarantee admission, and INA §291 places the burden of proof of eligibility on the applicant. Once admitted, the person’s passport is marked with the applicant’s “A” number and stamped with the following: “Processed for I-551. Temporary evidence of lawful admission for permanent residence valid until __________. Employment authorized for Form I-551.” As of the date of entry, the person is considered a lawful permanent resident, even though the alien registration card will be sent in the mail later and even though clients do not believe they are permanent residents until the treasured “green card” is in hand. If the applicant had an I-485 pending or an “A” number with USCIS, it is critical to notify USCIS that the applicant was issued an immigrant visa with a new “A” number, withdraw the I-485, and request file consolidation.
Removal Defense & Appellate Work
Carpenter & Capt provides high-quality Removal Defense work on behalf of foreign nationals in Removal Proceedings. We aggressively pursue cancellation of removal, asylum, withholding of removal, CAT relief, 212(h) waivers (including nunc pro tunc requests), adjustment of status and/or termination motions. What sets our defense work apart, is our strong appellate record with the Board of Immigration Appeals and the US Courts of Appeals for the 2nd, 4th, 6th, 7th, 9th and 10th Circuits. The Firm has won significant victories in these venues, some with deep precedential value for other cases. Our trial work starts with assuring the strategic positions we take, comport with the latest appellate decisions and law. Most of our appellate work comes from other lawyers who did not prevail at the trial level, and we remain happy to accept those cases for appeal. We are creative and passionate advocates, because we believe in the power of keeping families together.