Family Petitions

Green Card Spouse & Family Members

This visa category permits the immediate relatives of United States citizens to immigrate without waiting in a quota or preference line. Mere marriage to a United States citizen or permanent resident does not automatically create resident status in the United States. The United States relative must file a petition on behalf of the foreign relative, and the foreign relative must undergo an interview by the United States government for admissibility to the United States as an immigrant.

However, less immediate ties than a spouse or parent of a United States citizen require that a person apply for his or her visa through a series of categories which may or may not be current at the time the person’s application is approved. A United States citizen must be at least 21 years of age in order to immigrate a relative.

There are FOUR basic categories of family preference:

  1. Adult sons and daughters of United States citizens
  2. Spouses and adult sons and daughters of lawful permanent residents or Green Card holders
  3. Married children of United States citizens
  4. Brothers and sisters of United States citizens

A U.S. citizen can file the petition on behalf of his/her:

  1. Husband, wife, or child under the age of 21
  2. An unmarried child over the age of 21
  3. Married child of any age
  4. Brother or sister if the U.S. citizen is at least 21 years old
  5. A parent if the U.S. citizen is at least 21 years

Under INA 201(b) the U.S. Citizen’s spouse, parent or child (under 21) is considered an Immediate Relative, and as such NO preference quota is required. Furthermore, even under the tough new adjustment laws, a United States Citizen may petition for his or her Immediate Relative even if that relative has fallen out of status. The immediate relative must have entered the United States legally however.

A lawful permanent resident can file the petition on behalf of his/her:

  1. Husband or wife
  2. Unmarried child

A bulletin is issued by the United States Department of State http://travel.state.gov/visa/bulletin/bulletin_1360.html showing the status of the various visa categories in relation to the preferences for the worldwide countries which have not over-subscribed the system as well as a breakdown for those countries which are over-subscribed. There are varying waiting periods in these categories, depending on the backlog of prior applications on a worldwide basis and on a per country basis in the case of certain high demand countries. These waits are unpredictable, and can change from month to month, since the waiting line depends upon the number of people with earlier priority dates on their approved applications who actually complete the process when the time comes that the visa is available.

The Violence Against Women Act (VAWA)

Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser’s assistance or knowledge, in order to

Who is Eligible?

To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

* Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

* Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

* Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent.

What are the Basic Requirements?

The self-petitioning spouse,

* Must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.

* Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.

* Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.

* Is required to be a person of good moral character.

* Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

The self-petitioning child:

* Must qualify as the child of the abuser as “child” is defined in the INA for immigration purposes.

* Any relevant credible evidence that can prove the relationship with the parent will be considered.

What is the Process?

Prima Facie Determination: Battered immigrants filing self-petitions who can establish a “prima facie” case are considered “qualified aliens” for the purpose of eligibility for public benefits (Section 501 of the Illegal Immigrant Responsibility and Immigration Reform Act (IIRIRA). The USCIS reviews each petition initially to determine whether the self-petitioner has addressed each of the requirements listed above and has provided some supporting evidence. This may be in the form of a statement that addresses each requirement. This is called a prima facie determination.

If the Service makes a prima facie determination, the self-petitioner will receive a Notice of Prima Facie Determination valid for 150 days. The notice may be presented to state and federal agencies that provide public benefits.

Employment Authorization: Self-petitioners and their derivative children who have an approved petitions are eligible for an Employment Authorization Card.

Adjustment to Permanent Resident Status: Self-petitioners who qualify as immediate relatives of U.S. citizens (spouses and unmarried children under the age of 21) do not have to wait for an immigrant visa number to become available. They may file to Adjust as a Permanent Resident. Self-petitioners who require a visa number to adjust must wait for a visa number to be available before filing.

Victims of domestic violence should know that help is also available to them through the National Domestic Violence Hotline on 1-800-799-7233.