Immigration Attorneys at O'Flaherty Law

Marriage-Based Immigration

Eligibility and Application Process

Since spouses of U.S. citizens are considered immediate relatives, there are no caps on these visas or wait times for them to become available. As long as you can prove your marriage is “bona fide,” or true and authentic, the process is relatively straightforward. The U.S. Citizen spouse is known as the Petitioner, and the foreign national spouse is known as the Beneficiary (if just filing form I-130) or Applicant (if filing form I-130 and form I-485).

To qualify for sponsoring their spouse, the U.S. citizen Petitioner must:

• be a U.S citizen by birth or naturalization
• be at least 18 years of age, and
• have a valid marriage that is recognized in the U.S.

All prior marriages of both the Petitioner and Beneficiary/Applicant must have ended in death or divorce.

The U.S. citizen spouse must also prove their ability to financially support their spouse by filling out an Affidavit of Support (Form I-864). This form is included in the initial filing packet if the foreign national spouse is residing in the U.S. and is a part of consular processing if the foreign national spouse is outside of the U.S.

Documentation and Interview Process

The importance of including supporting documentation evidencing the bona fide marriage between the Petitioner U.S. citizen and foreign national spouse Applicant/Beneficiary should not be overlooked. In addition to the couple’s marriage certificate, any other documents proving an authentic marriage should be included.

These can include joint tax returns, joint bank statements, birth certificates for shared children, joint leases/mortgages/deeds, joint ownership of vehicles, joint car/home/apartment/health insurance, beneficiary designations on any insurance policies, joint credit cards and statements, photographs of the couple with family and friends or on trips together, joint utility bills, etc.

If the foreign spouse Applicant is physically present in the U.S. and eligible to adjust status, they can file forms I-130 and I-485 at the same time. Additionally, Form I-765 and Form I-131 can also be filed concurrently, for the foreign spouse’s employment authorization and travel authorization, respectively. These allow the Applicant to work and travel while their application is pending, which can take several months.

After an approval notice is obtained, both spouses will be notified of and required to attend an interview with a USCIS officer at a USCIS location near them. It’s important to not underestimate how crucial this interview is, as the officer uses it to assess whether or not your marriage is valid for immigration. An experienced immigration attorney can help prepare you for the types of questions you will be asked.

Consular Processing and Conditional Residency

If the foreign spouse Beneficiary is outside the U.S., in their home country, they would only need to file Form I-130 and then wait for their case to be forwarded to the National Visa Center (NVC) for consular processing. Once the I-130 petition is approved, the Beneficiary can immediately proceed with the next step. Here, they must complete an online form DS-260 Immigrant Visa Application, and wait for an interview appointment at the U.S. embassy or consulate in their country.

Only the foreign spouse attends this interview, but it is equally important for them to corroborate the authenticity of their marriage, as evidenced in their application. After the interview and upon approval, the foreign spouse will receive their green card. However, if the marriage is less than 2 years old at the time of the approval, the couple will need to jointly file Form I-751, Joint Petition to Remove Conditions on Residence.

The conditional green card will only be valid for 2 years, at which point the couple must file this form to remove the conditions on the foreign spouse’s residence. This ensures the foreign spouse maintains lawful status and will not be subject to removal proceedings. This Form I-751 can be filed anytime within the 90 days preceding the expiration of the foreign spouse’s conditional residence.

In some cases, the couple may no longer be married when it comes time for the green card holder to remove conditions on their residence. The conditional resident may still be able to file the I-751 on their own, by explaining extenuating circumstances, like divorce, annulment, death of the U.S. citizen spouse, abuse during the marriage, or an inability to return to their home country. As this needs to be sufficiently explained and documented, an experienced immigration attorney can help you navigate this complication.

What is USCIS (United States Citizenship and Immigration Services)?

USCIS is the federal agency that oversees lawful immigration to the United States, located within the U.S. Department of Homeland Security (DHS). In 2003, the former Immigration and Naturalization Services (INS) were transferred to three new agencies in the U.S. Department of Homeland Security (DHS): United States Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). Primarily, USCIS is responsible for processing applications and petitions related to immigration, including family-based visas, naturalization applications, green card applications, work permits, employment authorization, travel authorization, and various other immigration benefits.  

Some of USCIS’s key roles include: 

• Reviewing and processing family and employment-based applications 
• Conducting naturalization interviews and granting citizenship 
• Approving or denying requests for work authorization and travel documents 
• Overseeing asylum applications and other humanitarian relief requests 

‍

Filling Out the Right Immigration Forms

Completing and filing the correct immigration forms is essential to this brand of “administrative” law. The forms for different types of immigration relief constantly change. Both USCIS and EOIR (Executive Office for Immigration Review) require the most current versions and can even reject older forms, further delaying the immigration process. You can find the version and date at the bottom of each form. There are multiple pages of different immigration forms, but some common examples include:

• I-130 Petition for Alien Relative
• I-485 Application to Adjust Status
• N-400 Application for Naturalization
• I-140 Petition for Employment or Labor Certification
• I-765 Application for Employment Authorization
• I-131 Advance Parole (permission to leave and reenter the U.S.)

The forms mentioned above are filed with USCIS. Carefully follow the instructions to send the forms to one of the several lockboxes listed. You will want to consult an immigration lawyer to properly fill out the correct forms and file them alone or in conjunction with others to expedite service at USCIS. Forms for the EOIR or immigration court, on the other hand, are completely different. Relief from deportation before an immigration judge requires forms that include:

• I-589 Application for Asylum, Withholding of Removal and Protection under the Convention Against Torture
• EOIR-42A Cancellation of Removal for LPRs
• EOIR-33 Alien’s Change of Address Form
• I-290B Notice of Appeal to Board of Immigration Appeals
• I-765 Application for Employment Authorization

Form names differ depending on where you are in the immigration process. At USCIS, for example, you would use Form AR-11 to change your address, but not when facing deportation in court. Protection under the Violence Against Women Act (VAWA) is likewise requested on Form I-360 when filed with USCIS but by checking the second box on the EOIR-42B form requesting non-LPR cancellation of removal in court. An immigration attorney can help you file the correct immigration forms with the right agency to avoid denials of relief.

Getting a Visa

Whatever your reason is for wanting a visa, you should first determine if you need one. Some countries don't require application for a non-immigrant visa to under the United States if you're stay will be less than 90 days. If you do need a visa, your next step is choosing the correct visa type. There are many types of visas, broken down between Non-immigrant visas and immigrant visas.

Non-Immigrant Visas

Visas fall into two categories: non-immigrant visas (NIVs) and immigrant visas. NIVs are for those who do not plan on immigrating to the United States. Rather, they allow foreigners to work in the United States temporarily and need to be renewed every one to four years. Common NIVs awarded to foreigners ranging from visitors to skilled workers include:

• B-1/B-2 Business/Tourist visas
• F-1/F-2 Student/vocational visas
• H-1B Specialty occupation workers
• H-2A Temporary agricultural worker
• H-2B Other services/temporary labor
• J-Exchange visitor (au-pairs, teachers)
• L-Intracompany transferee (U.S. businesses)
• O-International Cultural Exchange Visitor

Many NIVs have “caps” meaning only a certain number are awarded each year. H-1B caps are notoriously limited despite being reserved for fields requiring “specialized knowledge.” NIVs are also fixed on purpose. When the purpose of the exchange expires, so does the visa. B-2 visas, for instance, only last six months. After that, you start to accrue “unlawful presence.”
‍

Immigrant Visas

Unlike NIVs, immigrant visas show an intent to remain in the United States. They are divided into family-based visas or employment-based visas, depending on who is “sponsoring” or promising financial support for the applicant. Immigrant visas are for those planning to become LPRs or USCs. Family sponsored immigrant visa categories include:

• IR1, CR1 Immediate Relative Spouse of USC
• K-1/K-3 Potential spouse planning to marry USC
• IR/IH Intercountry adoption of orphan by USC (United States Citizens)
• CR2, F3, F4 Certain family members of USCs (United States Citizens)
• F2A, F2B Certain family of LPRs (Legal Permanent Resident)

Like family-based visas, employment-sponsored visas contemplate permanent resident status in the United States. Companies “sponsor” foreign employees and later, in conjunction with Form I-485, allow these workers to immigrate to the United States. Employment-based visas may require certification by the U.S. Department of Labor and are grouped by “preference,” with some taking priority over others:

• E1/E2 First priority workers (highly specialized skill)
• E3/EW3 Professionals with Advanced Degrees, “Exceptional Ability”
• Third preference professionals and “other” workers
• S Visa Categories for Certain Special Immigrants (Fourth)
• F2A, F2B Certain family of LPRs (Legal Permanent Resident)

Whereas adjustment through family visas is “backlogged” for highly-impacted countries—Mexico, China, India, and the Philippines—employment-sponsored visas, despite being “capped,” are not. In fact, beneficiaries of employment-sponsored visas can request “premium processing” of their applications, which fast-tracks a decision upon payment of a fee. A trusted immigration lawyer will know which type of visa best serves your needs.

Getting a Green Card

If you are currently inside the United States and have entered the country legally, you can obtain a green card by adjusting your status (filling out USCIS Form I-485). However, if you are outside the U.S. in your home country, you will need to undergo consular processing with the Department of Homeland Security. This involves filling out an online form known as the DS-260. As stated in the sections above, this process can occur based on family, employment, investment, etc.  

Naturalization

Naturalization describes the process of becoming a U.S. Citizen. Lawful Permanent Residents (LPRs) can apply for naturalization using Form N-400, which can be a paper or online filing, and taking a citizenship test. The exam, conducted by a USCIS officer, will require some knowledge of U.S. history or civics and basic knowledge of the English language, including a reading and writing portion. In addition, applicants must demonstrate they do not pose a threat to national security by having belonged to certain criminal groups or previously engaging in specific “disqualifying” crimes. Once applicants pass the test, they take an oath to swear allegiance to the United States and receive a certificate that contains the date, time, and place of naturalization. 

The following criteria must be met by an applicant in order to qualify for naturalization:  

Age Requirement:   

Must be at least 18 years old 

Lawful Permanent Resident (LPR) Status:   

Must have a green card (LPR status) for a certain period:  

Typically, 5 years   

3 years if married to a U.S. citizen  

Continuous Residence:  

Must have continuously resided in the U.S. for at least 5 years (or 3 years if married to a U.S. citizen) 

Physical Presence:  

Must have been physically present in the U.S. for at least 30 months of the last 5 years   

18 months of the last 3 years if married to a U.S. citizen  

Residence in USCIS District or State:  

Must have resided in the state or USCIS district where the application is filed for at least 3 months before applying for naturalization 

Good Moral Character:  

Must demonstrate good moral character, in general, with no criminal record of serious offenses  

English Language Proficiency:  

Basic ability to read, write, and speak English (However, exceptions may apply for elderly applicants or individuals with disabilities) 

Knowledge of U.S. Government and History (Civics Test):  

Must pass an oral civics test covering U.S. history, government, and civic principles 

Must answer 6 out of 10 questions correctly 

‍What is Deportation?

Deportation is the formal process through which the U.S. government removes a person from the United States for violating immigration laws. It is used interchangeably with the term “removal.” Some common grounds for deportation include being unlawfully present in the U.S., violating the terms of a visa, committing certain crimes (like aggravated felonies or drug offenses), and posing a risk to national security (terrorism-related activities).  
Some common defenses to deportation include: 

‍Adjustment of Status 
Individuals facing deportation can apply for a green card through marriage, etc., if all other conditions are met.

‍Asylum, Withholding of Removal, or protection under the Convention Against Torture (CAT) 
Granted to individuals who fear persecution or torture in their home country on account of race, religion, nationality, political opinion, or membership in a particular social group. 

‍Cancellation of Removal 
For Lawful Permanent Residents (LPRs), this is granted if a person has had LPR status for at least 5 years, has resided in the U.S. for 7 years, and has not been convicted of any aggravated felonies. 

For non-lawful Permanent Residents, this is granted if the individual has 10 years of continuous presence in the U.S., proves good moral character, and proves that their removal would cause exceptional hardship to a qualifying U.S. citizen or LPR family member. 

‍Voluntary Departure 
Individuals facing deportation can voluntarily leave the U.S. in order to avoid a formal removal order 

‍U Visa or T Visa 
U-visas are available for victims of certain crimes, and T-visas are available for victims of human trafficking 
Must cooperate with law enforcement 

 Prosecutorial Discretion 
This enables the government to decide whether to close or pause the removal case based on certain factors like length of time in the U.S., family ties, or humanitarian concerns.

 I-601A Provisional Unlawful Presence Waiver 
Available for individuals that are deemed inadmissible due to unlawful presence but have qualifying relatives in the U.S., like a U.S. citizen or LPR spouse or parent 
Must prove extreme hardship to U.S. citizens or LPR spouses or parents.

Constitutional Challenges to Improper Proceedings 
In certain cases, the validity of the deportation order can be challenged if due process rights were violated or evidence was obtained illegally.  

‍TPS (Temporary Protected Status) 
This can serve as a defense to removal for individuals from certain named countries to receive temporary protection from removal due to ongoing conflicts or natural disasters in their home country. 
It is crucial to consult with an experienced immigration attorney in order to assist you in your defense against a deportation order, as the consequences can be life-altering.