In order to submit a successful immigration application, noncitizens must have a legal ground that supports their application. If they have been in the US for many years, what options are available to them? What should they be looking at to see whether any applications can be filed for them to gain legal status in the U.S.? Below are three potential pathways that may lead them to a lawful status in the U.S.
A. Family Relationships Can Be a Legal Ground for U.S. Immigration.
This is the most commonly used ground; most lawful permanent residents are admitted each year based on family relationships. Not all family relationships qualify for immigration. Only some do. Generally, a noncitizen resident must have a family member who is a U.S. citizen or U.S. lawful permanent resident. A citizen in the U.S. or lawful permanent resident has the ability to file a petition for family members to become lawful permanent residents (green holders). The application process generally consists of two steps. It begins with filing a Form I-130 petition which serves to establish the relationship between the noncitizens and their qualifying relatives. After the I-130 petition is approved, the noncitizen family member may either pursue consular processing to apply for an immigrant visa, or adjust status to lawful permanent residence in the U.S. Two main groups of family relationships serve as legal grounds for U.S. immigration, including immediate relatives of U.S. citizens and preference family members of U.S. citizens and lawful permanent residents.
Immediate Relatives. Immediate relatives are relatives of U.S. citizens. They consist of husbands or wives (spouses) of a U.S. citizen, unmarried children of U.S. citizen parents, and parents of U.S. citizen children. For spousal petitions, marital relationships must be legally valid and factually bona fide. To qualify for immediate relative classification, noncitizen children must be under 21 years. In order to petition for their parents, U.S. citizen children must be 21 years old or older. Stepchildren can also petition their stepparents if the marriage establishing the step relationship is entered into when the petitioning children are under 18 years old.
Immediate relatives are not subject to annual numerical visa caps. This means visa numbers are always available to them. They are permitted to adjust their status in the U.S. even if they have overstayed their nonimmigrant status or worked without authorization. For those undocumented long-term residents, adjustment of status will allow them to become lawful permanent residents without having to depart the U.S., thus avoiding the need to apply for an unlawful presence waiver. This can be very important to keep in mind.
Preference Family Members. Unlike immediate relatives, preference family members are subject to a numerical visa cap of 226,000 visas each year. Their application process may take up to 20 years to complete. The I-130 petition filed by the U.S. citizen or lawful permanent resident establishes a priority date that is of great importance in the future visa number availability determination. After the approval of the petition, the noncitizen family members will wait for the visa numbers to become current in order to take the next step to file their visa application. To ascertain whether a visa number in a given case is available requires the applicant to check the monthly visa bulletin published by the Department of State each month. If the priority date matches or is prior to the final action date found in the visa bulletin, the visa number is available in that case. Altogether there are four preference categories listed as follows:
1st Preference (F1): Unmarried sons and daughters of U.S. citizens. This preference applies to those sons and daughters who are older than 21 years. The visa numbers available to them are limited to 23,400 annually.
2nd Preference (F2): This preference is further divided into two subcategories: F-2A and F-2B. Under the F-2A subcategory are spouses and children of lawful permanent residents (LPR). The F-2A children must be unmarried and younger than 21 years. The F-2B subcategory includes unmarried sons and daughters of LPR who are older than 21 years. The total visas available under the second preference are 114,200 each year, of which 87,934 are allocated to the F-2A subcategory, while 26,266 are assigned to the F-2B subgroup.
3rd Preference (F3): Married sons and daughters of U.S. citizens. The total visa
numbers allocated under this preference are 23,400 annually
4th Preference (F4) - Brothers and sisters of U.S. citizens. To qualify for this
Preference, the U.S. citizen siblings must be 21 years old or older. There are 65,000 visa numbers available each year to siblings of U.S. citizens.
These family relationships are not set in stone and may change along with people’s age, marital status and immigration status. A lawful permanent resident may qualify for naturalization to become a U.S. citizen; his wife and unmarried children under 21 years old will become immediate relatives. The noncitizen children may grow older and age out of the immediate relative group or the F-2A preference. The noncitizens may get married and become ineligible for immediate relative classification or under F2 preference.
B. Domestic Violence Can Be a Ground for Immigration Status.
If a noncitizen has been a victim of domestic violence at home and the family member who abused the noncitizen is a U.S. citizen or lawful permanent resident, they may file a self-petition with the USCIS. Domestic violence can take many different forms including but not limited to: physical harm, sexual assault, emotional manipulation, and economic or immigration related threats. An abused spouse, if eligible for U.S. immigration based on a bona fide marriage, may self-petition for lawful permanent resident status under the Violence Against Women Act (VAWA). If the self-petition falls under the immediate relative category based on marriage to a U.S. citizen, the self-petitioner will be able to adjust her status to lawful permanent resident status. However, if the self-petition is based on marriage to a lawful permanent resident, the visa number may not be immediately available in the category and she will have to wait for the visa number to become available before she can file for adjustment of status. These immigration benefits do have specific requirements that must be established so it is highly recommended you consult an attorney about this.
C. Being a Victim of a Crime in the U.S. Can Also Help Noncitizens Qualify for US Immigration.
If a noncitizen resident is a victim of a crime that happened in the US, they may be eligible for a U visa. Not all crimes qualify for U visas; only some crimes do such as felony assault, kidnapping, murder, manslaughter, abduction, blackmail, domestic violence and other crimes. To file an application for a U visa, the noncitizen must meet the following requirements.
The noncitizen is admissible to the U.S. If they are inadmissible to the U.S. they must also apply for advance permission to enter as a nonimmigrant.
They must be a victim of a qualifying crime as has been mentioned above. Visit this website to see more qualifying crimes: https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity-u-nonimmigrant-status
They must show that they have been helpful to the police or the prosecutor in their investigation and prosecution of the crime. To meet this requirement, they will generally need to obtain a U certification from the police or the prosecutor’s office.
Finally, it must be demonstrated that the crime has caused substantial harm. The harm may be physical or psychological harm.
The U visa is subject to a numerical limitation of 10,000 or less visas per year. Because of the limited availability of visa numbers, there has been a huge backlog before the USCIS for U visa applications. The wait for USCIS review and adjudication can be up to 5 years. Once approved, the U nonimmigrant status is valid for 4 years. After a visa holder has been in the U visa for 3 years, she is eligible for lawful permanent resident status.
Please note that these three grounds discussed above are not the only grounds for U.S. immigration. There are other grounds. But for long term residents who are undocumented, these three grounds may be most applicable grounds to support their applications.
We are a Eugene Immigration Attorney office ready to help you obtain lawful status in the U.S. Contact us by calling 541-484-1811 or by emailing bwang@bwanglaw.com.
DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.