Family-based immigration

Jennifer Walker-Gates answers your questions about residency and family-based immigration applications.

At Walker Gates Vela, family unity is paramount. In 100% of our cases, clients’ desires to remain legally in the United States are founded in their need to serve, protect, and uplift their families. Most of our clients have sacrificed heroically for the sake of their children, spouses, parents, and extended families, and we recognize and honor that heroism by assisting however we can in the process of gaining legal immigration status in the United States. Whether you are petitioning for your spouse, brother, sister, or child, we can assist you every step of the way. We can help you obtain family-based immigrant visas, Green Cards, and eventually citizenship for all eligible members of your family.

ADJUSTMENT OF STATUS

Getting a Green Card for your foreign-born relative in the United States

To sponsor your relative to legalize his or her status in the United States, you must file a petition through the United States Department of Homeland Security. For spousal petitions, you must demonstrate that your marriage is bona fide (i.e. not entered into for the purpose of evading U.S. immigration laws) and that you are an eligible petitioner.

If you are a U.S. Citizen and your relative is an immediate relative, is present in the United States, and entered the country legally, here are the basic steps you need to take:

  1. The U.S. citizen submits a form I-130 visa petition on behalf of your foreign-born immediate relative along with the correct supporting evidence of identity, nationality, and your relationship
  2. The foreign-born immediate relative must have a medical examination by a USCIS-approved physician
  3. The foreign-born relative files for adjustment of status with an I-485 packet
  4. Within 90 days, your foreign-born relative will receive an Employment Authorization Document (EAD) and may qualify to travel outside of the U.S.
  5. Within three to four months, both petitioner and beneficiary may have to appear at a USCIS office for an interview
  6. At the interview, if the application for residency is approved, the USCIS will stamp the passport of the foreign-born immediate relative with an I-551 stamp, indicating the completion of the permanent residency application process.
  7. The foreign-born relative will receive his/her Green Card in the mail.

If the petitioner is a Lawful Permanent Resident or the foreign-born relative entered the U.S. without inspection, or has any criminal convictions or past immigration problems, he/she may have to apply for a green card at a U.S. consulate or embassy in the home country. He or she may, however, be eligible to apply for a provisional waiver in the United States – click here or ask our Austin immigration attorneys for more information.

If you are a U.S. Citizen and your relative is an immediate relative, is present in the United States, and entered the country legally, here are the basic steps you need to take.

CONSULAR PROCESSING

Getting a Green Card for your foreign-born relative outside the United States

To sponsor a relative to come to the United States from abroad, you must file a petition through the United States Department of Homeland Security. If the petition is for your spouse, you must demonstrate that your marriage is bona fide (i.e. not entered into for the purpose of evading U.S. immigration laws) and that you are an eligible petitioner.

If you are a U.S. Citizen or lawful permanent resident and your relative is currently outside the United States, here are the basic steps you need to take:

  1. The U.S. citizen or lawful permanent resident petitioner submits a form I-130 visa petition on behalf of your foreign-born relative along with the correct supporting evidence of identity, nationality, and your relationship
  2. After the petition is approved, the U.S. citizen or lawful permanent resident petitioner must file form DS-260 with the National Visa Center, along with an I-864 Affidavit of Support and evidence of financial eligibility to sponsor the foreign-born beneficiary for resident status
  3. Within three to four months of submission of all required documentation, the foreign born relative will be required to attend an interview at a designated consulate in his or her home country (or a third country where he or she is residing lawfully)
  4. The foreign-born relative must have a medical examination prior to the interview by a USCIS-approved physician at a designated clinic
  5. At the interview, if the application for residency is approved, the consular officer will forward the applicant’s passport for administrative processing where a resident visa will be affixed to the passport, indicating the completion of the permanent residency application process.
  6. The foreign-born relative will receive his/her Green Card in the mail after arriving in the United States and paying the Immigrant Fee for green card processing.

Some individuals applying for resident status from outside the United States will require a waiver of inadmissibility in order to be approved for residency. At Walker Gates Vela, we have vast experience handling all manner of waiver applications. For more information, please contact our attorneys at 512-633-1785.

Spousal Petitions

A spousal petition is made on Form I-130. It is the first step in the multi-step process of helping a spouse immigrate to the United States. You may file an I-130 petition for your spouse if you are:

  • A lawful permanent resident or
  • A U.S. Citizen

For the petition to be approved, you must show that you and your spouse are not married solely for immigration purposes. If a petition is approved, it does not mean that the beneficiary spouse will automatically receive legal immigration status. The spouse must still be eligible to complete the final steps of the immigration process.

Fiancé Petitions

A fiancé petition is made on Form I-129F. It is the first step in the multi-step process of helping a fiancé and his or her children, if any, immigrate to the United States.

  • You may file an I-129F petition for your fiancé if you are a U.S. Citizen and:
  • You have an intention to marry within 90 days of your fiancé’s arrival in the United States and are both free to marry and
  • You have met in person within two years of the filing*

*UNLESS

  • Such a meeting is contrary to religious custom or social tradition, or
  • Such a meeting would cause extreme hardship to you, the U.S. Citizen

If a fiancé petition is approved, it does not mean that the beneficiary will automatically receive legal immigration status in the United States. The fiancé must still be eligible to complete the final steps of the immigration process.

Immediate Relative Petitions

An immediate relative petition is made on Form I-130. It is the first step in the multi-step process of helping the spouse, parent or minor child of a U.S. citizen immigrate to the United States. When a beneficiary of a petition is classified as an “immediate relative,” it means that he or she does not have to wait in the preference system for a visa to become available. It means that the only wait time involved for the person to immigrate is for that of administrative processing of the paperwork.

For a relative to be classified as an immediate relative, the petitioner must be a U.S. Citizen. The relative who is the beneficiary of the petition must be the U.S. Citizen’s

  • Spouse
  • Minor Child Under 21
  • Parent*

*If the beneficiary is a parent, the U.S. Citizen petitioner must be over 21 years of age.

If a petition is approved, it does not mean that the beneficiary will automatically receive legal immigration status. The beneficiary relative must still be eligible to complete the final steps of the immigration process.

 

FORM I-130

Preference Category Petitions

A preference category petition is made on Form I-130. It is the first step in the multi-step process of helping certain relatives immigrate to the United States. You may file an I-130 petition in a preference category if you are:

A lawful permanent resident filing for your:

  • Spouse
  • Minor unmarried children
  • Adult unmarried children

OR a U.S. Citizen filing for your:

  • Adult unmarried children
  • Adult married children
  • Sister or brother

If a petition is approved, it does not mean that the beneficiary relative will automatically receive legal immigration status. The beneficiary relative must still be eligible to complete the final steps of the immigration process.

If a petition is approved, it does not mean that the beneficiary relative will automatically receive legal immigration status.

WAIVER OF INADMISSABILITY

Provisional (“State-side”) Waivers Of Inadmissibility

Provisional waivers of inadmissibility are generally available to individuals who are the spouse, parent, or minor child of a U.S. Citizen* and who are inadmissible to the United States only because they entered or have been in the United States without permission. The benefit of the provisional waiver is that the applicant may remain in the United States while the waiver is being adjudicated, rather than waiting for the decision on the waiver from outside the United States. Provisional waivers are not available to individuals who are inadmissible to the United States for any reason other than an unlawful entry or presence without permission. Applications for provisional waivers for individuals seeking lawful permanent resident status are made on Form I-601A.

*Please note that, pursuant to announcements and executive orders issued on November 20, 2014, spouses, children, and parents of Lawful Permanent Residents may now also qualify to apply for the provisional waiver.

Determining whether an individual is or is not eligible to apply for a provisional (“state-side”) waiver requires a complex and thorough analysis of the law and facts of his or her case. As with all immigration matters, consultation with an experienced immigration practitioner is advisable prior to making an application.

Complex Waivers Of Inadmissibility

Complex waivers” are what we call waivers that are not “provisional waivers.” Complex waivers are used to request that the immigration service allow an individual to become a resident of the United States in spite of any grounds of inadmissibility that may apply to his or her case, including because of past immigration violations or criminal convictions. Applications for waivers for individuals seeking lawful permanent resident status are made on Form I-601. Determining whether an individual is or is not eligible to apply for a waiver for a particular ground of inadmissibility requires a complex and thorough analysis of the law and facts of his or her case. As with all immigration matters, consultation with an experienced immigration practitioner is advisable prior to making an application.

FORM I-751

Removal Of Conditions

Petitions to remove the conditions on an individual’s resident status are made on Form I-751. Typically, the petition is filed by both spouses in order to obtain the new lawful permanent resident’s 10-year green card, which will replace the two-year “conditional” card that was issued previously. In order to have the conditions successfully removed, the couple must demonstrate that the marriage was entered into in good faith, not for immigration purposes, and that the good faith marital relationship remains intact.

In some circumstances, where there has been divorce, separation, death of the petitioning spouse, or abuse in the marital relationship, the I-751 petition may be filed by only the new lawful permanent resident with a request to waive the requirement that both spouses file. WGV handles both joint petitions to remove conditions on residency and those filed by only one spouse. Eligibility determinations require a complete analysis of the facts and law applicable in the case. Consultation with an experienced immigration practitioner is recommended prior to filing the I-751 petition to remove conditions on residency.

Consultation with an experienced immigration practitioner is recommended prior to filing the I-751 petition to remove conditions on residency.

Contact Us About Your Case

Austin:

505 East Huntland Drive,
Suite 300
Austin, TX 78752

San Antonio:

3615 Broadway,
Suite 2
San Antonio, TX 78209

info@walkergatesvela.com

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