At Pelton + Balducci, it’s our mission to identify the quickest and least stressful way for our clients to reunite with their family members. Each case is different, and we carefully analyze every client’s situation to chart the best path forward, always with an eye towards expediency and minimizing risk for our clients. We understand the hardship that comes with being separated from loved ones, as well as the stress that is inherent in the immigration process. We understand the importance of keeping our clients informed about their case status each step of the way, and we are happy to answer any questions that may arise during the process.
Family immigrant visas account for approximately 48 percent of the more than 1 million new green card holders in the U.S., according to the National Immigration Forum. Of these, there are two major categories for family-based immigration: immediate relatives and family preference categories. Immediate relatives include spouses, parents, and any unmarried children under 21 of U.S. citizens, and USCIS grants unlimited immigrant visas for this category of relatives annually.
However, the availability of family preference immigrant visas, which includes spouses and children of lawful permanent residents, brothers and sisters of U.S. citizens, married children of U.S. citizens, and adult children of U.S. citizens is limited and there is often a long wait for visa availability for applicants in these categories. In addition, there is a 7 percent cap annually for family visas that can be issued for each country, adding more challenges for individuals from so-called over-subscribed countries. Depending on all of these factors, it can take years, and sometimes even decades, to receive a visa for eligible family members.
There are generally two main routes used to pursue lawful residence through family: Adjustment of Status inside the United States or Consular Processing an immigrant visa abroad.
Marriage-based immigration petitions are one of the most common types of petitions filed. Marriage-based petitions also face a higher level of scrutiny by the USCIS or another government adjudicator because immigration law requires that the marriage underlying the petition be “bona fide.” This means that the marriage must have been entered into for purposes other than the “beneficiary,” or applicant, obtaining an immigration benefit (lawful permanent resident status, relief from removal, etc.). It should be noted that allegations of marriage fraud are very serious and can prevent an individual from ever becoming a lawful resident and, if the allegations of fraud are substantiated, can also expose one to criminal prosecution.
Practically speaking, it is important to submit evidence of the bona fide nature of the marriage in support of the I-130 Petition for Alien Relative, if at all possible. Evidence of children born to or adopted by the couple is one of the strongest types of evidence to establish that the marriage is genuine. In the absence of children, evidence of the couple’s cohabitation and financial commingling of assets and debts, as well as the filing of joint taxes, are good examples of the type of evidence the adjudicator looks for in a marriage-based case. It is important to note that when demonstrating the bona fide nature of a marriage, there is not one single item that is required in all cases; rather, it is the totality of the evidence and the couple’s particular circumstances that the adjudicator will consider when determining whether the marriage is bona fide.
If a marriage-based adjustment of status case is approved prior to the second anniversary of marriage between the petitioner and beneficiary, then the lawful resident status awarded to the beneficiary will be conditional and valid for two years only. Then within 90 days of the expiration of the two-year conditional resident status, the beneficiary is required to file an I-751 Petition to Remove the Condition on Residence in order to apply for the permanent resident status. If the petitioner and beneficiary are still together as a couple, then the I-751 Petition may be filed jointly, along with evidence of the ongoing relationship. If, however, the couple has separated or divorced, or the petitioner has died, then the beneficiary must file the I-751 Waiver of Joint Petition. There is also a waiver petition option if the beneficiary has been abused by the petitioner. Failure to file the I-751 following expiration of the two-year conditional resident status results in the beneficiary’s resident status being terminated, thereby subjecting the beneficiary to the risk of removal proceedings.
Timely filing the I-751 Petition either jointly or as a waiver petition is critical to maintaining lawful status after the conditional resident status grant. It is also very important to file the I-751 upon the correct basis, in order for the petition to be properly and timely adjudicated.
Our goal is to carefully analyze your situation and map out the strategy with the highest chance of success. Whether this means helping your spouse naturalize so that you have a faster path to permanent residency, or re-filing a petition that was previously denied—our goals are your goals. Some cases present multiple paths to proceed, and we will help you understand the pros and cons of each approach, so that you can make the best decision for you and your family. We are grateful for the opportunity to explore the options with you, no matter where you are in the process.
With backgrounds in both the government and nonprofit sectors, our firm grew from a passion for serving the immigrant community and their family members in the Greater New Orleans area. Bringing more than 30 years of combined experience to each case, our entire team is fluent in Spanish. To get started with your family immigration process, or to learn more about how we can help, schedule your consultation today. Call us directly at (504) 708-5400 or fill out our contact form online.