Immigration Services

Alma Rosa Nieto

Immigration Services

Family Petition (I-130)

A United States citizen has several options for petitioning when using the I-130 application.

Citizens can petition their children regardless of age or marital status. The waiting period will depend upon the age, marital status and country of origin.

Citizens may also petition siblings regardless of their age or marital status. The application may also include the single children under 21 years old and spouse of the sibling being petitioned. This waiting period will vary depending on the country of origin.

Citizens are able to petition for residency for their mother and / or father. In some cases, step-parents may qualify.

Legal Permanent Residents may only petition their spouse or unmarried children, regardless of age. Residents can not petition siblings or parents.

Residency Through Marriage

To apply for residency through marriage, the applicant must be legally married to a permanent resident or citizen of the United States. Those who are in a domestic partnership or have been married only through the church do not qualify. Legal documentation through the court is necessary.

Both individuals wishing to proceed in the residency application must be single or divorced prior to marriage in order to qualify. Any previous marriages, including those entered into in another country, must be dissolved completely and recorded in the civil registry.

There are two types of residency through marriage: permanent and conditional. This will be determined by how many years the couple has been married by the time the beneficiary is issued residency.

In order to be approved, the individuals must show that their marriage was entered in good faith and for love. They should be able to prove the validity of their marriage. Following are some examples of documentation that show a bonafide marriage: mortgage or lease showing their names, joint bank / credit accounts, birth certificates of children in common, and declarations attesting to cohabitation from family and neighbors and wedding photos.

The process of applying for residency begins with the filing of an I-130 application. Those beneficiaries who last entered the United States with inspection and are married to a United States citizen are not required to leave the country in order to obtain lawful residency.

If the beneficiary has not entered the country legally, they are required to return to their country of origin in order to be interviewed at the United States Embassy within that country. There is the 245i exemption to this law which allows certain individuals who were petitioned by an employer or family member prior to May of 2001 to obtain their residency in the United States.

A legal consultation with a practicing and licensed immigration attorney, not a notary public, is highly recommended. Each case is unique and requires in-depth legal analysis to ascertain the right strategy.

Adjustment of Status (I-485)

The I-485 application allows the beneficiary to apply for permanent residency within the United States without having to travel to their country of origin. This application is fairly restricted and the most common ways to apply are:

  1. 245a protection will qualify an applicant. Meaning, an individual must be married to a United States citizen and have entered the country legally. Another option is Parole in Place (PIP) which offers protection to the spouse or parent of a person serving, or who has served, in the United States military.
  2. Apply for residency 1 year after the approval of an asylum case.
  3. Apply for residency 3 years after the approval of a U – Visa case.
  4. Apply for residency after the approval of a labor case with the Department of Labor. In order to qualify, the applicant must have 245i protection or have been in continual lawful status in the United States.
  5. Individuals with 245i protection who are parents of a United States child over the age of 21 may apply.
  6. Those with 245i protection who are being petitioned by a family member may apply for their residency by using the I-485 application once their priority date becomes current.

Fiancé Visa (K Visa – I-129F)

The K Visa is a non-immigrant visa which allows the fiancé of a United States citizen to enter the United States so the couple may wed. This visa is also available to the spouse of a United States citizen.

The K Visa process requires two parts. First, the application must be filed for approval within the United States. Next, the fiancé will be required to interview at the United States Embassy within their country of origin. In order for the petition to be approved, both parties must be free to wed, have met in person within the last two years and have the intention to marry.

Once the fiancé enters the United States, the couple has 90 days to legally marry. Once married, they may apply for permanent residency within the United States. The beneficiary will receive legal status at the United States Citizen and Immigration Services (USCIS) Office closest to the city where the couple lives without being required to travel outside the country.

Temporary Protected Status (TPS) for Central Americans (I-821)

Persons from El Salvador, Nicaragua and Honduras are eligible for this relief. Those granted Temporary Protected Status (TPS) are exempt from deportation and are given a work permit to be renewed every 18 months. In some cases, TPS may allow the applicant a permit known as Advance Parole to re-enter the United States after brief travel abroad. Consult with an attorney regarding Advance Parole as some situations may be risky.

TPS does not lead to residency.

Combined Process (I-130 / I-1485)

In some cases, beneficiaries may qualify to obtain residency in a single step. Certain beneficiaries may submit both the I-130 and the I-485 applications together. In order to determine if an individual is eligible to do so, it is recommended the individual seek legal advice from a practicing and licensed immigration attorney. Submitting the above applications without receiving legal counsel first puts the case at risk for denial and could result in the individual being placed in removal proceedings before an immigration judge.

Removal of Conditional Residency (I-751)

As previously mentioned, there are two types of residency: permanent and conditional. Conditional residency lasts two years and an additional step must be taken for the beneficiary to receive permanent residency. This process applies to a spouse and stepchildren who were granted conditional residency.

Transitioning from conditional to permanent residency requires the filing of the I-751 application. Currently, its approval can take up to a year. The application must be submitted with supporting documentation showing the couple is still married and remained married throughout the two year period. If two years pass and the conditional residency expires without applying for permanent residency through the I-751, all chances of permanent residency can be lost and a new I-130 will be needed for the process to begin again. The I-751 must be filed in the 90 day period immediately before the conditional residency is scheduled to expire.

Permission to Exit the United States – Advance Parole (I-131)

Advance Parole allows the applicant to request permission to leave and re-enter the United States legally.

It requires that the applicant have an open case with immigration such as TPS (I-821), DACA (I-821D) or Adjustment of Status (I-485).

Even those with an approved Advance Parole should consult with an attorney before leaving the United States to ascertain any risks in leaving the United States.

Political Asylum (I-589)

The I-589 application may be submitted abroad at a port of entry or within the United States.

The applicant will be asked to prove past persecution or fear of future persecution due to his or her race, religion, nationality, and / or membership in a particular social group or political opinion. The requirements are constantly being altered and cases are difficult to win. Substantial evidence, documentation and preparation are needed to convince immigration that a case has merit.

If denied, an asylum applicant will be placed in deportation proceedings and must appear before a judge in immigration court. Legal advice from a qualified attorney is very important in these cases.

FOIA

All individuals residing in the United States have the right to request a copy of their records describing all interactions with the Immigration Court, border authorities, airport officials and offices of immigration. It is recommended to request these records so that an attorney can have all the details of your case and make sure pursuing a case with immigration is the right path. In some cases, individuals have orders of deportation on their record and are not even aware of it.

FOIA requests take a long time, even up to a year. A CD will be sent with all the information recorded on it.

FBI Check and State Check

All individuals residing in the United States have the right to request a copy of their government record of criminal and immigration arrests. Those who have lived in various states of the United States are recommended to obtain an FBI check.

Individuals who have been arrested by Immigration and Customs Enforcement (ICE) or by Border Patrol may request a FOIA which contains all information pertaining to immigration arrests.

All arrests or convictions by the police must be requested in the state in which the arrest or conviction occurred. Either the arrest record or court disposition may be requested.

Consular Case – Immigrate Through the United States Embassy in the Applicant’s Country of Origin

Individuals who have an immigrant visa available but are not eligible to obtain residency while in the United States may use the Consular Process. An applicant will need to return to his or her country of origin for an interview to determine eligibility.

Before the applicant’s appointment, a criminal background check and check of all arrests by immigration will be completed. The applicant must also visit an Embassy-approved doctor to undergo a medical examination to determine if there are any medical grounds of inadmissibility such as communicable diseases.

The final interview is the last step in the process for residency and it is the most important. Applicants must be well advised and prepared by his or her attorney before leaving the United States for their interview. The final appointment at the United States Embassy may be postponed if the date is not convenient or if the applicant is not ready.

After the interview, if the application is approved, the United States Embassy will send the applicant an envelope containing the appropriate immigration visa needed to enter the United States. The applicant will present this visa at the point of entry to the United States and thereafter a permanent residency card will be issued.

Depending upon the details of the case and applicant, it can take anywhere from 1 to 20 years plus to obtain residency.

An applicant should never leave the United States for an Embassy interview without first consulting an immigration attorney. Consular cases must be fully analyzed to make sure there are no reasons for denial.

VAWA, Residency through Domestic Violence (I – 360)

The Violence Against Women Act (VAWA) is a law that protects men and women against violence by a spouse. Congress passed this law to protect undocumented immigrants who endure dangerous relationships in the hopes of receiving legal resident status.

The two-step process requires applicants to first obtain approval of their I-360 VAWA application and then file for adjustment status with the I-485 application. Approval of the I-360 gives the applicant legal status in the United States. Once the I-1360 is approved, spouses of a United States citizen may file an I-485 application to obtain residency. Spouses of lawful permanent residents must wait until their priority date is current.

In order to qualify, the applicant must be married to a United States citizen or Legal Resident. The applicant must also prove they have suffered domestic violence and / or psychological abuse due to their spouse. Proof of the abuse can be: pictures, police reports, criminal court documentation if applicable, orders of protection from the court, written witness statements, medical and / or psychological records, letters of religious counselors.

The applicant should not fear applying as the abuser will not be advised by USCIS that the petition has been filed.

U-Visa (I-918)

Congress created the U – Visa to assist law enforcement in investigating crime. Only 10,000 visas are issued per year. An approval can take many years as there are many more applicants than available visas.

There are three steps to the application process.

  1. The form I-918B must be signed by the police, public prosecutor or judge involved in the criminal case. The certification of the I-918B application proves that a qualifying crime took place, the victim had information helpful to the investigation and was willing to assist law enforcement in its investigation. These are all requirements for an applicant to be eligible.
  2. The I-918B must be submitted with the I-918 to USCIS.
  3. Once approved, the applicant must wait 3 years inside the United States before applying for permanent residency.

The approval of a U-Visa grants the beneficiary: permission to work, a social security number, the right to apply for a driver’s license, and in some cases allows the beneficiary to leave the United States and re-enter legally for emergency reasons.

The victim may include their spouse and children under the age of 21 in their application for a U – Visa. Victims who are minors may include their parents and minor siblings in their applications.

Those applicants with a history of crimes, immigration fraud or falsely claiming to be a United States citizen may be disqualified.

Waivers (I-601, I-212)

Immigration law states that individuals who have committed certain acts are ineligible to immigrate to the United States. In some cases, an individual is eligible to request a waiver (or pardon). If approved, that ground of inadmissibility would be waived thus making the person eligible to apply for legal residency.

Waivers are used in variety of cases due to situations like unlawful presence, deportations, crimes, immigration fraud or use of fraudulent documents. Waivers are some of the most difficult cases to be approved by USCIS and must be extremely well prepared.

In some cases, waivers can be submitted within the United States while the applicant is in the process of residency thus preventing the separation of family.

In other cases, the applicant must return to their country of origin and request the waiver at the United States Embassy of their country of origin, waiting outside the United States until the waiver is approved. Waivers can take months or even years to be decided. Once approved, the applicant can obtain legal residency.

Deferred Action for Childhood Arrivals (DACA, I-821D)

In 2012, President Obama created this program through an executive order to grant applicants a work permit to be renewed every two years. In order to qualify for the program, an applicant must have entered the United States before reaching the age of 16, currently be enrolled in school or have graduated from high school, have not been convicted of certain crimes, have proof of residence in the United States from June 15, 2007 to present and have been born before June 15, 1981.

Once an application is approved, a work permit is granted and the applicant is eligible to request Advance Parole. Advance Parole allows the applicant to leave the United States and re-enter legally.

The program does not lead to permanent residency and will not be granted to those with certain criminal offenses. A denial of a DACA application may place the applicant in deportation proceedings. It is highly recommended to seek legal counsel before applying to avoid the risk of removal.

Nicaraguan and Central American Relief Act (NACARA, I-881)

This program is open to undocumented individuals from El Salvador and Guatemala and if approved leads to permanent residency.

In order to be approved, an applicant must have at least 7 years of continuous residence in the United States, have paid income taxes, have good moral character and prove that being removed to their country of origin would result in extreme suffering.

To be eligible to apply, an applicant must be one of the following:

  • A Guatemalan who first entered the United States on or before October 1, 1990; registered for ABC benefits on or before December 31, 1991; applied for asylum on or before January 3, 1995; and was not arrested at time of entry after December 19, 1990.
  • A Salvadoran who first entered the United States on or before September 19, 1990; registered for ABC benefits on or before October 31, 1991; applied for asylum on or before February 16, 1996; and was not arrested at time of entry after December 19, 1990.
  • A Guatemalan or Salvadoran who filed an asylum application on or before April 1, 1990.

In some cases, the children and spouse of the applicant may qualify.

Naturalization (N-400)

In most cases, an applicant must first be a legal permanent resident to qualify for United States citizenship. The N-400 application may be filed by an applicant who has been a legal permanent resident for at least 5 years. If the applicant obtained residency through marriage to a United States citizen, he or she may submit an application for citizenship after 3 years of residency.

Applicants must know how to read and write basic English, have good moral character, know the government and history of the United States and reside in the United States for the requisite time.

Those applicants over 50 years old with more than 20 years of permanent residency and those applicants over 55 years old with more than 15 years of permanent residency are exempt from taking the test in English. They may take the test in their native language.

Medical waivers are available for those individuals who can demonstrate that their inability to comply with the English and civics / history requirements is due to a medical condition.

Upon applying for citizenship, USCIS will investigate your criminal record to determine if any crimes disqualify an applicant.

Consult with an immigration attorney before applying. Obtain all information regarding past criminal convictions when speaking with an attorney. If denied, some applicants may be placed in removal proceedings and have their residency taken away. Also, some applications may not be necessary. For example, a child born abroad to United States citizen parents may already be a United States citizen and an attorney would be able to evaluate such a s case to determine if United States citizenship was acquired at birth.

It is recommended that all legal residents become citizens. Residency can be lost but citizenship cannot unless it was obtained through fraudulent means.

Labor Certification – Immigration through Employment

Labor Certification is very rare at this time but was a common process in the past. Now, very few people are eligible.

An employer petitions on behalf of an employee with the Department of Labor. When the labor certification is granted, the employee must then submit the I-140 application with USCIS. If the applicant has 245i protection or has continuously been in status in the United States, he or she may file an adjustment of status. If approved, the spouse and children under the age of 21 may be included.

If the applicant is not eligible to apply for adjustment of status, he or she must leave the United States and return to their country of origin to interview with the United States Embassy. As there is no waiver for unlawful presence when immigrating through an employer, the applicant’s case will be denied by the Embassy due to unlawful presence in the United States. This will bar the petitioner from immigrating to the United States for 10 years.

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