Who can file visa petitions for family members?
U.S. citizens and “lawful permanent residents” (green card holders) can petition for certain family members.
If the family member is outside the U.S., two steps are required:
- USCIS (United States Citizenship and Immigration Services) must first approve the petition; and then
- The immigrant visa is issued by a U.S. consulate abroad, which usually then sends it to the applicant.
If the family member is already in the U.S., the entire process may sometimes be completed in the U.S., without travel. When a person obtains a green card in the U.S., it is called an “adjustment of status.”
Which relatives are eligible for visas?
There are two classes of relatives for whom you can request visas: immediate relatives, and those who are in “preference categories.”
Immediate Relatives (no limit on the number of visas for these family members):
- Spouses of U.S. citizens, including same-sex spouses
- Parents of U.S. citizens, where the citizen is at least 21 years old
- Children of U.S. citizens, where the child is under 21
Other Relatives (restricted number of visas for these preference categories):
- Unmarried sons or daughters of a U.S. citizen
- Married sons or daughters (including spouses and children) of a U.S. citizen
- Spouse and children (under 21) of a lawful permanent resident
- Unmarried sons or daughters (over 21) of lawful permanent resident
- Brothers or sisters (including spouses and children) of a U.S. citizen
How many visas are available for the preference categories?
A limited number of visas are available for each of these categories, and a new block of visas becomes available on October 1st of each year. There are different waiting periods for each category, and it often takes years for these visas to be available, especially if your family member is from Mexico, China, India or the Philippines. The State Department publishes the Visa Bulletin each month, indicating how long the wait is.
Who can “Adjust Status” in the U.S?
Some relatives can become permanent residents of the U.S. without leaving the country. This means that they “adjust status” while in the U.S.
Immediate relatives who entered the U.S. with a visa or other lawful permission are generally eligible to adjust status. Relatives who entered the country unlawfully are sometimes eligible to adjust under very specific circumstances.
What is the “waiver” process for a relative who entered the U.S. unlawfully?
Since March 2013, immediate relatives who entered the U.S. unlawfully – and have been here for 180 days or more – may be eligible to file a waiver and stay in the U.S. while USCIS processes the waiver request. The relative will usually have to leave the U.S. and attend an appointment at the U.S. Consulate in their home country.
See the Provisional Waivers page for more information on this process.
I’ve heard that section 245(i) of the Immigration and Naturalization Act can be helpful. What is it?
Immediate relatives and preference category immigrants who entered the U.S. “without inspection” – that is, illegally – may be “grandfathered” under section 245(i) if a relative or an employer petitioned for them before April 30, 2001. Derivatives beneficiaries on such a petition are also covered. If you think you may qualify under 245(i), you should consult with attorneys at Camille Cook immediately.
What is Pubic Charge?
Public charge is a ground of inadmissibility, under the Immigration and Nationality Act, that can bar someone’s admission into the U.S on an immigrant visa or adjustment of status to a lawful permanent resident (green card). For immigration purposes, “public charge” means an individual who is likely to become primarily dependent on the government to get by. This may come in the form of public cash assistance, or long-term care at government expense. Certain types of adjustment processes currently require an affidavit of support to prove that the applicant will not become a public charge.
How is someone determined to be a public charge?
Inadmissibility because of public charge is determined by weighing all circumstances. This means that the adjudicating officer must balance the positive and negative factors of an applicant when determining how likely the applicant is to become a public charge. Some of the factors that the USCIS takes into consideration are:
- Family Status
- Financial Status
- Educational Skills
What public benefits are considered when determining if someone is a public charge?
Benefits that can be considered for public charge purposes include:
- Supplemental Security Income (SSI) under Title XVI of the Social Security Act.
- Temporary Assistance for Needy Families (TANF) cash assistance (this does not include subsidized child care)
- State and local cash assistance programs that provide benefits for income maintenance
- Programs that support individuals who are institutionalized for long-term care (e.g. nursing home).
USCIS may also consider any other cash assistance programs when considering if an applicant is or will become a public charge
What are the proposed changes to the Public Charge Rule ?
The proposed rule by USCIS seeks to change the way USCIS officers determine if an applicant is a Public Charge. The changes include adding to the list of benefits that are used to consider if an applicant is a Pubic Charge. Some of the benefits that USCIS could be added to the list are Non-emergency Medicaid (with some exceptions, including foreign born children of US citizens), SNAP, Premium and cost-sharing subsidies within Medicaid D, and Housing programs. It currently has not been decided if programs like the CHIP (Children’s Health Insurance Program) will be added to the list.
Furthermore, the new rule proposes that there be a 36 month “look back,” which means that USCIS would be able to review the applicants previous 36 months for benefit use. Currently, USCIS officers are required to make public charge determinations by only considering if an applicant is likely to become dependent on public benefits in the future. While the new rule does not propose to alter the “totality of circumstances” test used to determine if someone will become a public charge, it does propose a new way for weighing those circumstances. The proposed rule seeks to implement the usage of “positive” and “negative” factors to determine if an applicant is a public charge. The rule also proposes establishing thresholds for use of certain benefits, which if reached by an applicant would result in them being seen as “heavily weighted negative factors” when determining the if the applicant is a public charge. Yet another proposed change would be that in “certain limited circumstances” a lawful permanent resident returning from a trip abroad would be considered an applicant for admission and thus be subject to inadmissibility determination, including public charge.