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Green Card - Family Petitions

A person who marries a citizen can qualify for immigration in this category. The marriage must not be a "sham," of course that is, one entered into in order to obtain an immigration benefit. The marriage must be legally entered into that is, both parties were free to marry, all prior divorces were legal, and the marriage formalities themselves are recognized as legal in the jurisdiction where the marriage occurred. The marriage must still legally exist the parties cannot be divorced or legally separated. But the marriage need not be viable even if the parties are separated, if they have not entered into a legal separation agreement or gotten divorced they still have a valid relationship for immigration purposes.

The spouse of a citizen whose marriage was created within two years prior to being granted permanent residence is granted residence on a conditional basis. He or she is a full permanent resident in all respects eligibility for employment, ability to travel freely in and out of the United States, accumulation of time toward compliance with residence and physical presence requirements for naturalization as a U.S. citizen but that residence is subject to termination within two years after it is granted if the marriage has terminated by divorce or annulment during that period, or the marriage turns out to be sham.

Battered Spouses of U.S. Citizen

Battered spouses of citizens may also file their own immediate relative petitions. To qualify, the alien spouse must be a person of "good moral character," must have entered the marriage in good faith, must have resided in the United States with the citizen spouse, and must have been battered or subjected to "extreme cruelty" by the citizen spouse. Any credible evidence submitted with the spousal petition with regard to the treatment of the alien spouse will be considered by the INS. The law provides identical benefits to battered children of a U.S. citizen. The self-petitioning procedure for battered spouses was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994.


Widowers of U.S. Citizen

Spouses of deceased citizens qualify as immediate relatives for whom immigration may be sought under some circumstances. In order to qualify, the alien must have been the spouse of the deceased citizen for at least two years and must not have been legally separated at the time of the citizen's death. The alien spouse must file an immediate relative immigrant visa petition within two years after the date of death and must still be unmarried at that time. Alien spouses seeking residence on this basis must use a different form than other family-sponsored immigrants, Form I-360, which they can file themselves. The unmarried minor children of the alien spouse may be included in the petition as well, under a provision of the technical corrections bill passed by Congress in October 1994.

Parents of U.S. Citizen

Parents of U.S. citizens are eligible to immigrate as immediate relatives, but only if the citizen is 21 years of age or older. The citizen must be able to qualify as a child of the parent according to the rules just outlined, except of course that the citizen must be over the age of 21 and can be married. To determine whether a parent qualifies for immigration, then, it is essential to look at the parent-child relationship in the same way as you would if you were determining whether a child would qualify.

Spouses and Unmarried Sons and Daughters of Permanent Resident Aliens

The second family-sponsored preference is set aside for two groups: preference 2A includes spouses and children the immediate family members of permanent residents, and preference 2B includes the rest of the current second preference category, unmarried adult sons and daughters of residents. The entire preference category is allotted a minimum of 114,200 annual visas. Any visas unused by the first family-sponsored preference will go to the second family-sponsored preference. 77% of the annual visas goes to the 2A sub-preference and the other 23% goes to the 2B sub-preference. There is a waiting list for visas to immigrate in this category, regardless of the alien's country. The rules for determining who is a spouse are the same as those set forth for citizenship petitions. The sons and daughters of residents must either presently qualify as "children" as that term is strictly defined in the immigration law, or have qualified as children when they were under 21 years of age. The immediate family members of qualifying aliens can also immigrate with them in the second preference category. Example: The child of a formerly married but presently unmarried son or daughter of a resident can immigrate with the son or daughter. NOTE: Spouses of permanent residents whose marriage was created within two years prior to the grant of permanent residence are given residence on a conditional basis. Residence can be terminated up to two years after it was conferred if the marriage has ended in divorce or annulment or it turns out that it was a sham marriage entered into for immigration purposes.

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