Monday, February 25, 2008

Family Based Visas

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Family-based immigrants

In general, both immigrant and non-immigrant visas allow the spouse and minor children of the minor applicant to obtain a derivative visa in order to be with the main applicant. On this page we discuss family based immigrant visas that available to aliens that are related to US citizens. Other immigrant visas like the Diversity Visa lottery, Refugee or Asylum based visas are discuss somewhere else on this website.

1. Spouse of US Citizen

A spouse is a legally wedded husband or wife. Cohabiting partners do not qualify as spouses for immigration purposes. Common-law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs. In cases of polygamy only the first spouse qualifies as a spouse for immigration. U.S. law does not allow polygamy. If you were married before, you and your spouse must show that you ended (terminated) all previous marriages before your current marriage. The death and divorce documents that show termination of marriages must be legal and verifiable in the country that issued them. Divorces must be final. In cases of legal marriage to two or more spouses at the same time, or marriages overlapping for a period of time, you may file only for the first spouse. If you are an American citizen you have two ways to bring your foreign spouse (husband or wife) to the United States to live.

a. Immigrant visa for a Spouse of a U.S. Citizen (IR1 or CR1) - An immigrant Petition for Alien Relative, Form I-130 is required.
b. Nonimmigrant visa for spouse (K-3) - It is important to note that application for the nonimmigrant visa for spouse (K-3) who married a U.S. citizen must be filed and the visa must be issued in the country where the marriage took place. After the visa process has been completed, and the visa is issued, the spouse can travel to the United States to wait for the processing of the immigrant visa case. Petition for Alien Fiancé(e), Form I-129F, is required to get a K-3 visa.

2. Fiancé of US Citizen

A fiancé(e) is a person who is engaged or contracted to be married. The marriage must be legally possible according to laws of the state in the United States where the marriage will take place. In general, the two people must have met in person within the past two years. The Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) grants some exceptions to this requirement. For example, it may be contrary in some traditions for a man and woman to meet before marriage.

Filing the Petition

You must file the Petition for Alien Fiancé(e), Form I-129F, with the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) office that serves the area where you live. See the Department of Homeland Security's USCIS Field Offices for information on where you can file the petition. After the USCIS approves the petition, it sends the petition to National Visa Center for processing, prior to sending it to the embassy or consulate where your fiancé(e) will apply for a K-1 nonimmigrant visa for a fiancé(e).

Applying for a Visa

The consular section at the embassy or consulate where you, the fiancé(e) of an American citizen, will apply for a visa, will tell you about any additional specific requirements that you need to fulfill to complete your visa application, such as where you need to go for the required medical examination. During the interview process, an ink-free, digital fingerprint scan will be taken. Some of the information required for visa interview is as follows:

a. Passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States

b. Birth certificate

c. Divorce or death certificate of any previous spouse for both the applicant and the petitioner

d. Evidence of financial support (Form I-134, Affidavit of Support may be requested.)

e. Two nonimmigrant visa photos (each two inches 50 X 50 mm square, showing full face, against a light background)

f. Evidence of a fiancé relationship

After getting the visa, your fiancé(e) can travel to the United States and you must get married within 90 days of your fiancé(e)’s entry into the United States.

Travelling

The K-1 visa allows a fiancé(e) to enter the United States one time only. If you leave the United States after entering on a K-1 visa, you may not re-enter on the same visa. If you want to leave and re-enter the United States, you should apply with Form I-131 Application for Travel Document to the USCIS office that serves the area where you live for advance parole to return to the United States.

Employment Authorization

As a K-1 visa holder you may file Form I-765 Application for Employment Authorization with the USCIS office that serves the area where you live for a work permit (employment authorization document).

Registering Permanent Residence

After marriage, your spouse must file Form I-485 Application to Register Permanent Residence or to Adjust Status with the USCIS office that serves the area where you live in the United States. You must fill out the Affidavit of Support, Form I-864, with the USCIS for your spouse's application to become a lawful permanent resident (LPR).

Conditional Residence

If you have been married for less than two years when your spouse enters the United States on an immigrant visa, the permanent resident status is considered “conditional.” The immigrant visa is a CR (conditional resident) visa, not an IR (immediate relative) visa.

You and your spouse must apply together to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) to remove the “condition” within the ninety days before the two year anniversary of your spouse’s entry into the United States on an immigrant visa. The two-year anniversary date of entry is the date of expiration on the alien registration card (green card)

3. Minor children of spouse or fiancé

Spouses of U.S. citizens, and the spouse's children, can come to the United States on nonimmigrant visas (K-3 and K-4) and wait in the United States to complete the immigration process. Before a K-4 visa can be issued to a child, the parent must have a K-3 visa or be in K-3 status.

Children Have Derivative Status (K-4)

Children do not need separate Petition for Alien Relative, I-130 petitions, but you, the petitioner, must take care to name all your children on the Petition for Alien Fiancée, I-129F petition. If you do not name the children on the petition, they may find it difficult to prove their identity as children of a K-3 applicant or person in K-3 status.

However, you must file separate I-130 immigrant visa petitions for your children before they qualify for permanent residence. This is important because when you fiancée adjusts his or her status from K-3 to permanent residence the children will no longer be K-4, if you don’t file I-130, they would begin to accrue unlawful presence. This When they adjust status in the United States, they must file Form I-485 Application to Register Permanent Residence or to Adjust Status with the USCIS Office that serves the area where you live. Remember that in immigration law children must be unmarried and under 21 years of age.

What If the Applicant Is Ineligible for a Visa?

Certain conditions and activities may make an applicant ineligible for a visa. Examples of these ineligibilities are:

· Drug trafficking

· Having HIV/AIDS

· Overstaying a previous visa

· Practicing polygamy

· Advocating the overthrow of the government

· Submitting fraudulent documents

The consular officer will inform you, the visa applicant, if you are ineligible for a visa, whether there is a waiver of the ineligibility and what the waiver process is.