FAMILY BASED IMMIGRANTS

The Immigration and Naturalization Act provides for the immigration of dependent family members who are neither "accompanying" or "following to join" the primary immigrant under the same immigrant visa preference category and priority date.

A person is considered to be "accompanying" if he or she immigrates within six months of the primary beneficiary's immigration; otherwise, the individual is considered "following to join."

In order for a person to immigrate as a "following to join" dependent under the same immigrant category and priority date as the primary beneficiary, he or she must either be the primary beneficiary's spouse or child as defined in the Immigration and Naturalization Act.

• A child can always immigrate through proof relationship with his or her mother; though not through the father if the parents were not married and the child had not been legitimated.
• The requirements to be a spouse are that
  • the marriage must have been valid where celebrated;
  • the marriage was not contrary to public policy [i.e. polygamous or incestuous]; and
  • there is a valid divorce of all previous marriage(s) of both spouses.

Those who have not been married for at least two years at the time they apply for LPR status receive conditional resident status rather than legal permanent resident status.

• Within 90 days of the second anniversary of the grant of conditional residence, the couple must file a petition to remove the conditional status, and submit evidence that the marriage continues to be valid.
• If the marriage is teminated before the conditional status expires and legal permanent residency has been granted, the ex-spouse may request a waiver of the valid marriage requirement on the following grounds:
• The marriage was entered into in good faith, and the ex-spouse will experience extreme hardship if required to leave the U.S.; or
• The ex-spouse is a victim of battery or extreme cruelty by the other spouse (either U.S citizen or LPR).

If a marriage takes place while the prospective beneficiary is in removal proceedings, the parties must establish that the marriage was entered into in good faith.

 

CHILD

A child is an unmarried individual under the age of 21; and includes a legitimated child, an adopted child, an orphan child, or a stepchild.

A legitimated child is one whose father marries the mother, or where a child born out of wedlock receives the same legal rights as the child whose father marries the mother in the applicable jurisdiction.

• Legitmation must occur before the child's 18th birthday.
• The father must be the biological father.

Adoption must be final before the child reaches 16, except that if a family adopts a child who is the natural sibling of another adopted child and the adoption occurs at the same time or subsequent to the adoption of the first child, the second or subsequent child can still be considered a child if the adoption is finalized before the child reaches 18.

• The biological parents may not receive any benefits under the immigration laws where there has been an adoption.

A step-child relationship takes place as long as the parents marry before the child's 18th birthday.

A step-parent relationship can continue even after the parents divorce, if the relationship with the stepparent continues.

 

PARENT

A U.S. citizen son or daughter can only petition on behalf of his or her parent when the child becomes 21.

 

SIBLING

To be a sibling of another person, both individuals must have been a child of a common parent at some time. An adoption severs the relaitonship where the adoption meets the statutory requirements of 8 U.S.C. 1101(b)(1)(E).