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US Immigration

Posted 6/27/2008

LEGAL NOTES / By REUBEN S. SEGURITAN

Family Relationships As Basis for U.S. Immigration

Family-based petitions have long been popular routes to U.S. immigration. The Immigration and Nationality Act (INA) enumerates certain family relationships that can serve as basis to apply for lawful permanent resident status in the U.S. The two main categories of qualifying relationships are 1) immediate relatives of U.S. citizens and 2) other close relatives of U.S. citizens or lawful permanent residents. Under the first category, U.S. citizens can petition for their immediate relatives to join them in the U.S. For purposes of immigration, their qualified immediate relatives are their spouses, minor unmarried children under 21, and parents (as long as the petitioning US citizen child is at least 21).

Spouses of deceased U.S. citizens who were married for at least two years at the time of the citizen spouses’ deaths may also qualify as immediate relatives. These immediate relatives of U.S. citizens are not subject to quota limitations.

On the other hand, other close family relationships are subject to quota limitations of available immigrant visas per country. These relatives fall under any of the four family-sponsored preferences.

Unmarried sons and daughters of U.S. citizens, 21 years of age or over, fall under the Family First Preference category. Children of U.S. citizens who were petitioned before they were 21 but aged-out while waiting for entry to the U.S. may benefit from the Child Status Protection Act and preserve their immediate relative status provided they meet the requirements of the law.
Spouses and unmarried children (under 21) of lawful permanent residents or greencard holders fall under Family Second Preference 2A.
Unmarried sons and daughters (21 years or older) of greencard holders would fall under Family Second Preference 2B. Once they get married, they no longer qualify under this category.

Married sons and daughters of U.S. citizens are classified under the Third Preference category.

Brothers and sisters of adult U.S. citizens will qualify under the Fourth Preference category. This category has the longest wait. In the case of Filipinos, the waiting time to get a visa number is about 22 years. br />
Immigration laws have defined and clarified these familial relationships to be the basis of immigration benefits.

To be a “spouse”, there must be a valid and subsisting marriage between the petitioner and the beneficiary. U.S. immigration laws will not accept as valid homosexual, polygamous or incestuous marriages. Voidable marriages may, however, be recognized, unless there is a court order declaring its nullity.

Common law marriages (without marriage ceremony) may also be accepted if these are satisfactorily proven as recognized in the country where it occurred. Those who contracted marriage by proxy needs to consummate the marriage before this can be recognized for immigration purpose.

Sham marriages where the parties do not really intend to live together as husband and wife but solely contracted for immigration purpose have posed problematic consequences for the parties and will be denied.

The term “child” refers to: child born in wedlock (during valid marriage); or a stepchild who has not yet reached 18 years of age at the time of the marriage of the petitioning spouse and his/her parent; or a child legitimated (previously illegitimate but made legitimate upon subsequent marriage of his/her parents) before turning 18 and remains in legal custody of the legitimating parents.

The term also covers a child born out of wedlock if his/her natural mother seeks a benefit, status or privilege based on their parent-child relationship or the natural father proves a “bona fide” parent-child relationship.

An adopted child is also considered a child for immigration purposes if he/she was under the age of 16 and under the legal custody and resided with either or both of the adopting parents for at least two years.

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old.

To qualify as a brother or sister as a basis for an immigration petition, there must be at least one common parent.

REUBEN S. SEGURITAN

has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281