The United States’ Family€¦ · Kevin Dixler practices immigration law in Chicago, Illinois. He...

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The United States’ Family Based Immigration Visa

Petition Process for Foreign Nationals

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Copyright © 2019

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About the Presenter

Kevin L. Dixler

Kevin Dixler practices immigration law in Chicago, Illinois. He joined the American Immigration Lawyers Association [AILA] in 1993. He limits his practice to immigration, naturalization law and related matters. Thompson Reuters honored him as a Super Lawyer from 2014 to 2019. He has served as a panelist at AILA Annual Conferences.

He currently serves on AILA’s National Field Office Liaison Committee. He has presented for APEX, among other CLE providers. He served on AILA’s National Waiver Committee, helped edit AILA’s Focus on Waivers, among other responsibilities. He moderates Immlog, a nationally known Yahoo! Group of attorneys, who limit their practice in immigration law. Avvo.com has also featured him as speaker on immigration.

Email Address: [email protected]

Website: www.dixler.com

Mailing Address: 542 S Dearborn St #590, Chicago, IL 60605

Phone Number: 312-588-0500

mailto:[email protected]

http://www.dixler.com/


Table of Contents

Contents

Kevin L. Dixler .............................................................................................. 3 Table of Contents ............................................................................................ 4 Course Description .......................................................................................... 6 Course Learning Objectives and Outcomes .................................................... 7 Timed Agenda: ................................................................................................. 8 The United States’ Family Based Immigration Visa Petition Process for

Foreign Nationals ................................................................................................. 10 Fundamental Terms....................................................................................... 10 Who are Valid Petitioners? ............................................................................ 10 Family Based Categories for USC Petitioners ................................................ 10 Family Based Categories for LPR Petitioners ................................................. 11 Immediate Relatives v. Preference/Quota .................................................... 11 Preference/Quota Categories (Visa Bulletin) ................................................ 11 Immediate Relative v. Preference/Quota Category ...................................... 12

Issues: ........................................................................................................ 12 Benefits/limits for immediate relatives: ................................................... 12 Benefits and limitations for preference categories: ................................. 12

Initial Client Appointment ............................................................................. 13 Family based: Consular processing v. Adjustment ........................................ 13 Processing in U.S. Adjustment of Status ....................................................... 14

Most Common Process: ............................................................................ 14 Processing Abroad: Consular Processing ....................................................... 14 The Evidence: Bona fides of a family relation ............................................... 14 Family Immigration: Bona fides by Child ....................................................... 15 Family Immigration: Adopted Child............................................................... 15 Family Immigration: Siblings ......................................................................... 15 Family Immigration: Spouse .......................................................................... 16

Family Immigration: Spouse, Proof of bona fide relationship .................. 16 Family Immigration: Evidence of GF Spouse ............................................. 16 Family Immigration: Spouse – Conditional Resident Status, when? ........ 17

What is Conditional Resident Status? ................................................... 17 Family Immigration: Changes, Loss, Recovery? ............................................ 17

Divorce .................................................................................................. 17 Marriage ............................................................................................... 17

Family Immigration: Other Concerns ............................................................ 18 Affidavit of Support: Introduction ................................................................. 18


Affidavit of Support: The agreement/Obligations ................................ 19 What is the Affiant Agreeing to? .......................................................... 19

Affidavit of Support: I-864 Public Charge .................................................. 19 How much is needed? Required Practice: ............................................ 19

Additional Administrative Case law............................................................... 20 Resources ...................................................................................................... 21

Resources Specific to this Course.............................................................. 21 Resources for the Legal Professional ........................................................ 21


Course Description

Course Presentation

This course provides an in-depth examination of the process and procedure of the

United States’ Family Based Immigration Visa Petition Process for Foreign

Nationals.

This course provides practical guidance and a discussion on best practices

regarding pursuing immigration petitions under the United States’ Family Based

Immigration Visa Petition Process for Foreign Nationals. This courses examines

spouse, sibling, child and family immigration petitions and issues relating to

consular processing, bona fides of family relations, adoped children and

conditional resident status.

Course Material

This material is intended to be a guide in general and is not legal advice. If you

have any specific question regarding the state of the law in any particular

jurisdiction, we recommend that you seek legal guidance relating to your

particular fact situation.

The course materials will provide the attendee with the knowledge and tools

necessary to identify the current legal trends with respect to these issues. The

course materials are designed to provide the attendee with current law,

impending issues and future trends that can be applied in practical situations.


Course Learning Objectives and Outcomes

This course is designed to provide the following learning objectives

The ability to understand the relevant federal law related to Family Based

Categories - for USC Petitioners, U.S. Citizen - USC Lawful Permanent

Resident, Immediate Relatives v. Preference/Quota and Preference/Quota

Categories (Visa Bulletin).

The ability to understand the relevant federal law related to processing in U.S.

adjustment of status, processing in U.S. adjustment of status, and processing

abroad: consular processing.

Participants will develop an understanding of the evidence relating to bona fides

of a family relation, bona fides by child, adopted child, siblings, spouse, proof of

bona fide relationship, and conditional resident status.

Participants will become familiar with Affidavit of Support, Affidavit of Support:

I-864 Public Charge, and Additional Administrative Case law.

Upon completion of the course, participants should be able to apply the course

material; improve their ability to research, plan, synthesize a variety of sources

from authentic materials, draw conclusions; and demonstrate an understanding of

the theme and concepts of the course by applying them in their professional lives.


Timed Agenda:

CLE Course Title: The United States’ Family Based Immigration Visa Petition Process for Foreign Nationals

Time Format (00:00:00 -

Hours:Minutes:Seconds)

Description

00:00:00 ApexCLE Company Credit Introduction

00:00:20 CLE Presentation Title The United States’ Family Based

Immigration Visa Petition Process for Foreign Nationals

00:00:32 CLE Presenter Introduction

00:00:50 CLE Substantive Material Presentation Introduction

00:02:25 Basic Terms

00:05:45 Family Based Categories - for USC Petitioners

00:08:00 U.S. Citizen - USC Lawful Permanent Resident - LPR

00:09:24 Immediate Relatives v. Preference/Quota

00:10:55 Preference/Quota Categories (Visa Bulletin)

00:18:32 PROCESSING IN U.S. ADJUSTMENT OF STATUS

00:24:44 Processing in U.S. Adjustment of Status

00:27:29 Processing Abroad: Consular Processing

00:33:09 The Evidence: Bona Fides of a Family Relation

00:38:56 Family Immigration: Bona Fides by Child

00:40:51 Family Immigration: Adopted Child

00:43:27 FAMILY IMMIGRATION SIBLINGS

00:49:14 Family Immigration: Spouse, Proof of Bona Fide Relationship

00:58:06 Family Immigration: Spouse -


Conditional Resident Status, When?

01:10:12 FAMILY IMMIGRATION: OTHER CONCERNS

01:14:45 Affidavit of Support: Introduction

01:21:33 Affidavit of Support: I-864 Public Charge

01:28:16 Additional Resources

01:31:53 Additional Administrative Case law

01:33:32 Presenter Closing

01:34:37 ApexCLE Company Closing Credits

01:34:42 End of Video


The United States’ Family Based Immigration Visa Petition Process for Foreign Nationals

Fundamental Terms

Petitioner = Applicant – U.S. citizen USC/lawful permanent resident - LPR

Beneficiary = Alien – Foreign spouse/family member

Derivative = Alien’s family member

Joint Sponsor = USC or LPR co-financial sponsor

Who are Valid Petitioners?

U.S. Citizens

Lawful Permanent Residents

Self-Petitions for o widow(er)s; and o spouses in abusive relationships

Family Based Categories for USC Petitioners

U.S. Citizens can petition for:

Spouses

Parents (includes step-parents in certain circumstances) NOTE: Petitioner must be 21 years old

Children (includes step-children in certain circumstances)

Siblings (can include half-siblings) NOTE: Petitioner must be 21 years old

Fiancé(e)


Family Based Categories for LPR Petitioners

Permanent Residents can petition for:

Spouses F(2)(a)

Unmarried Children a) under 21 years old F(2)(a) b) over 21 years old F(2)(b)

Immediate Relatives v. Preference/Quota

Immediate Relatives

a) Spouses of U.S. citizens b) Unmarried children, under 21 years old, of U.S. citizens c) Parents of U.S. citizen children, 21 years old or older d) Widow/widower of U.S. citizen if married at time of death and petition

within 2 years of death

Preference/Quota Categories (Visa Bulletin)

Family based categories are: (NOT employment/diversity preferences)

a) 1st: unmarried sons and daughters of USCs b) 2nd: spouses and unmarried children; sons and daughters of LPRs:

2A: spouses and unmarried children, under 21, of LPRs

2B: unmarried sons and daughters, 21 and over, of LPRs

3rd: married sons and daughters of USCs

4th: brothers and sisters of USCs


Immediate Relative v. Preference/Quota Category

Issues:

a) Crucial distinctions in family relationships b) Benefits are significantly limited based on the quotas c) Limits in each relationship that potentially disqualify some for

immigration benefits

Benefits/limits for immediate relatives:

No numerical limits – no designated cues to wait in (other than processing times) but still part of overall 480,000 cap

Allowed to adjust status in the U.S. even if work without authorization or out of legal status (exempt from INA § 245(c), not 212(a)(6)(C))

Grounds of inadmissibility still apply and not all grounds have waivers and not all immediate relative relationship qualify for waivers available

No derivative beneficiaries on petitions for immediate relatives – separate petitions are required for each family member

Benefits and limitations for preference categories:

1. Numerical limits – designated lines to wait in based on country, type of

relationship, and date of filing of immigrant petition (priority date)

2. NOT allowed to adjust status in the U.S. if prior work without authorization or out of legal status (INA § 245(c) applies) unless 245(i) eligible [rare].


3. Grounds of inadmissibility continue to apply and not all grounds can be waived and not all preference category relationships can qualify for waivers available

4. Derivative beneficiaries allowed: separate petitions not needed for

qualifying family members [note: financial support required!]

5. Other issues not covered: cross chargeability, accompanying/following to join

Initial Client Appointment

• Importance of comprehensive and detailed intake: • Required to determine appropriate procedure and identify potential

complications/ineligibility from the start of representation • Keys: stress importance of accuracy of information provided, not

answering questions, do not understand, not providing information that is

• unknown, complexity of immigration law, etc. … • If consular processing case: DS-260 questions at intake; If adjustment of • Status case: I-485 questions at intake • Lots of resources for sample intakes: dedicate the time and energy,

upfront. Why free consults can be ineffective.

Family based: Consular processing v. Adjustment

• Two distinct forms of processing • Adjustment of status: apply for permanent residence in U.S. U. S. Citizenship and Immigration Services in the U.S. • Consular processing: application for immigrant visa with the U.S. • Department of State at consulate/embassy abroad Key: Must determine if individual is eligible to adjust status in the U.S. or

needs to consular process (See INA § 245(a) & 245(i)). If not, then the risks of adjustment denial and alternative relief.


Processing in U.S. Adjustment of Status

Most Common Process:

• – One-Stop Filing – eligible for adjustment of status now (immediate • relative with procedurally legal entry, 245(i) eligible, military family • member parole in place, etc.) [NOTE: not in Immigration Court]: Steps: 1) file immigrant petition (Form I-130) with USCIS (U.S. Citizenship &

Immigration Services) along with adjustment of status application (Form I-485) at the same time with USCIS in the U.S. (include other forms, medical!)

2) Adjustment of status – may not be eligible immediately (preference categories or those with certain immigration histories):

a) file immigrant petition with USCIS and then apply for adjustment b) eventually apply for adjustment of status with USCIS when the priority

date on the immigrant petition is current if lawfully present! (F1, H1b, etc.)

Processing Abroad: Consular Processing

• Consular processing – for those ineligible for adjustment of status This includes immediate relatives and preference categories with certain

immigration histories: 1) File immigrant petition with USCIS. 2) Pre-processing with the National Visa Center in the U.S. when

the priority date is current 3) Consular interview with the DOS (Department of State) at

consulate/embassy abroad. 4) File for I-551 LPR Card online after visa foil approval.

The Evidence: Bona fides of a family relation

1) Burden of Proof is on Petitioner/Applicant a)“Preponderance of the Evidence” Standard of Proof

(i) )Exceptions – “Clear and Convincing” Standard of Proof: Marriage previously determined to be a sham marriage and refiling petition

for same spouse


(ii) Marriage occurred after removal proceedings initiated, must specifically ask for this Good-Faith Exception when filing

b) Permanent Resident Petitioner who obtained residence through prior marriage and is filing Petition for new spouse within 5 years must show that prior marriage was bona fide. [note: INA 204(c) bar]

Family Immigration: Bona fides by Child

• Child/Son/Daughter [INA 101(b)] – • Marriage Certificate for parents (If child born in wedlock) and evidence

of termination of prior marriages • If step-child, marriage must have occurred before child’s 18th birthday • Birth Certificate for the child listing the parents • If child born out of wedlock:

a) Evidence of legitimation of the parent-child relationship prior to child turning 18 (Method differs depending on the country)

b) Evidence of the ongoing parent-child relationship c) If parents later marry, could also qualify as a step-child.

Family Immigration: Adopted Child

• Where child was adopted, evidence that adoption occurred prior to the child turning 16 (18 where adopted with younger sibling that was adopted

prior to turning 16) • Evidence that child resided for 2 years in the legal custody of the parent • There are additional requirements for adoption cases, especially if the

child is from country that is signatory on the Hauge Adoption Convention • Parent or Step-Parent • Evidence that child/son/daughter met relationship as a “Child” of the

parent or step-parent. (see above relationship requirements)

Family Immigration: Siblings

• Siblings –


a) Evidence that each sibling met the requirements of being a child/son/daughter of the shared parent(s). (see above)

b) There are additional requirements for adoption cases if child is from country that is signatory on the Hague Adoption Convention.

Family Immigration: Spouse

• Documentation that the marriage is legally valid • Certified Marriage Certificate • Proof of the termination of all prior marriages (i.e., Divorce • Decree, Annulment Decree, Death Certificate) • - Marriage must be valid in state or country where it occurred and must

not be void/unlawful in state where couple are/will be residing. [Example: Texas].

Family Immigration: Spouse, Proof of bona fide relationship

• Verifiable documentation that couple did not marry solely to obtain immigration benefits:

1) The intent of the couple at the time of the marriage is determined by looking at their actions before and after they married

2) Evidence of shared residence (although it is technically possible to show a marriage is bona fide even where the couple resides apart) 3) Evidence of commingling of assets NOTE: There is no single document and no specific item that is required to

prove a good faith marriage. There are examples, but…

Family Immigration: Evidence of GF Spouse

A few Examples: • Birth certificate for couple’s child/children • Joint tax returns • Joint bank account – statements demonstrating joint use • Joint health/life/car/homeowners insurance • Joint home ownership/lease • Current address on both driver’s licenses/ID • Joint utility, cable, phone, etc. • Photos of the wedding and family photos from throughout relationship • Affidavits from friends and family (usually in I-751, but…)


Family Immigration: Spouse – Conditional Resident Status, when?

What is Conditional Resident Status?

Beneficiary becomes a Permanent Resident as a spouse or step-child

Granted if approval made prior to 2nd anniversary of the marriage

2-year Conditional Permanent Resident, rather than regular 10-year card

– Must file Form I-751 as a joint or self petition. Otherwise, conditional status is abandoned. Joint petition filed w/in 90 days before expiration!

Family Immigration: Changes, Loss, Recovery?

• Upon Petitioner or Beneficiary Death • In general: Petition automatically revoked Exceptions: 1) Humanitarian Reinstatement if in U.S., very limited and discretionary • What if Petitioner Died A) If I-130 approved prior to death of petitioner, i) Affidavit of Support (I-864) filed by qualified substitute sponsor relative ii) Evidence that favorable discretion is warranted B) INA 204(l) reinstatement i) Either Petitioner or Primary Beneficiary Died ii) The Primary Beneficiary or a Derivative Beneficiary resided in US iii) Affidavit of Support (I-864) filed by qualified substitute sponsor relative iv) Evidence that favorable discretion is warranted

Divorce

Spouse of US Citizen or Permanent Resident – divorce before Beneficiary becomes a Permanent Resident causes petition to be automatically revoked

Step-child – Does not end step-parent/step-child relationship

where the parent-child relationship continues after the divorce

Married Son/Daughter of US Citizen (F-3) automatically

becomes Unmarried Son/Daughter of US Citizen (F-1) if over 21 or Immediate Relative (IR) if under 21

Marriage

Immediate Relative Child of US Citizen (IR) or Unmarried


Son/Daughter of US Citizen (F-1) automatically becomes Married Son/Daughter of US Citizen (F-3)

Unmarried Child/Son/Daughter of LPR (F-2A or F-2B) if marries before the Petitioner becomes a US citizen then petition is automatically revoked.

Derivative Beneficiary – If married before becoming a LPR, automatically forfeits ability to become LPR as a Derivative Beneficiary.

Family Immigration: Other Concerns

If the Child Turns 21 years – Ages Out of a Category, then longer wait

Child of a Permanent Resident (F-2A) - Automatically converts to Unmarried

Son/Daughter of Permanent Resident (F-2B) upon reaching 21 years

- Derivative Beneficiary of Preference Category Petition – Loses ability to

become Permanent Resident with Parent when reaches 21 years.

Exception Child’s age ‘might’ be “frozen” under 21 under the Child Status Protection Act (unusual, but possible)

An Immediate Relative Child (IR) – Does not age out

Child of a Permanent Resident (F-2A) and Derivative Beneficiaries of other Preference Categories may have priority dates “frozen” under 21 years depending on time taken by USCIS for approval, how long it takes visa to become available in Visa Bulletin, and when they apply for Adjustment of Status or Immigrant Visa.

Affidavit of Support: Introduction

Why Needed?

To be eligible for residency, an applicant must prove that they are not

likely to become a “public charge” INA § 212(a)(4).

How to prove?

For family based cases, the petitioner must file an Affidavit of


Support (I-864) with supporting financial evidence to show they can

maintain the beneficiary above the poverty line.

Affidavit of Support: The agreement/Obligations

What is the Affiant Agreeing to?

a) To Maintain the beneficiary above the poverty line ‘until’ the beneficiary, if necessary:

i) Becomes a U.S. Citizen; ii) beneficiary has Worked for 40 quarters (10 years); iii) No longer has LPR (Lawful Permanent Resident) status and leaves the

United States or dies b) Divorce doesn’t terminate obligations. [NOTE: conflicts of interests!

Affidavit of Support: I-864 Public Charge

How much is needed? Required Practice:

a) Look to I-864P for income requirement for household size and compare to petitioner’s income. If good, stop inquiry. If not, continue:

b) See if you can use applicant’s income. If you can and if above, stop inquiry. If not, continue:

c) See if petitioner has other assets which can be used for Affidavit of Support purposes. Remember amount must be 5x the amount needed for income, or 3x what’s required if for spouse. If so, stop inquiry, maybe… If not,

d) Find a joint sponsor, and repeat a to c.

Sponsor be a U.S. Citizen or Permanent Resident

Must be able to show income/asset level required for their own

household size plus the beneficiary

Must be able to show income/assets completely on their own or with a

spouse (cannot combine their income with petitioner income to get above

the amount)

Does not need to be able to support petitioner or other members of

petitioner’s family, unless the other members are also applicants

Consulates may require additional evidence as to why the joint sponsor is

willing to sign Affidavit of Support.

A possible new form I-944 or I-945 may be required.


Additional Administrative Case law

Matter of Pagan, 22 I&N Dec. 547 (BIA 1999) [DNA testing acceptable]

Matter of Arthur, 20 I&N Dec. 475 (BIA 1992) [bona fides]

Matter of Boromand, 17 I&N 450 (BIA 1980) [bona fides, entered]

Matter of Isber, 20 I&N Dec. 676 (BIA 1993) [second marriage]

Matter of McKee, 17 I&N Dec. 332 (BIA 1980) [bona fides]

Matter of Otiende, 26 I&N Dec. 127 (BIA 2013)

Matter of Phillis, 15 I&N Dec. 385 (BIA 1975) [bona fides]


Resources

Resources Specific to this Course

Kurzban’s Immigration Law Sourcebook

Immigration Law and the Family, 5th Ed., by Charles Wheeler

INA, also known as 8 USC

Regulations within 8 CFR

USCIS Policy Manual at www.uscis.gov

Instructions to forms and forms’ information page on USCIS website

DOS Foreign Affairs Manual

DOS Visa Reciprocity Table, provided with Visa Bulletin

DOS Visa Bulletin, Issued Monthly

Website of specific US Embassy or Consulate from www.state.gov

Resources for the Legal Professional

ABA Center for Professional Responsibility - www.abanet.org/cpr Chicago Bar Association - www.chicagobar.org Commission on Professionalism - www.2civility.org Judicial Inquiry Board - http://www.illinois.gov/jib Illinois Board of Admissions to the Bar - www.ilbaradmissions.org Illinois Department of Financial and Professional Regulation - www.idfpr.com/default.asp Illinois Lawyers’ Assistance Program, Inc - www.illinoislap.org Illinois State Bar Association - www.isba.org Illinois Supreme Court - www.state.il.us/court Lawyers Trust Fund of Illinois - www.ltf.org MCLE Program - www.mcleboard.org

http://www.abanet.org/cpr

http://www.chicagobar.org/

http://www.2civility.org/

http://www.illinois.gov/jib

http://www.ilbaradmissions.org/

http://www.idfpr.com/default.asp

http://www.illinoislap.org/

http://www.isba.org/

http://www.state.il.us/court

http://www.ltf.org/

http://www.mcleboard.org/

The United States’ Family€¦ · Kevin Dixler practices immigration law in Chicago, Illinois. He...

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Transcript of The United States’ Family€¦ · Kevin Dixler practices immigration law in Chicago, Illinois. He...