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Q&A:
Family Immigration
July
3, 2000
One
of the most common types of problems we are presented with involve
family immigration issues.
The
U.S. Immigration system treats very differently a U.S. citizen’s
or permanent resident’s close family members (parents, spouses,
and unmarried and under-21 children) and other family members
(siblings, married and over-21 children, and others).
The
family members in the first category are called “immediate
relatives.” Immediate
relatives have a much easier process and shorter wait to get their
green cards than other types of relatives.
Other family members may also be
eligible for a green card, as well, but there is a much longer wait.
This is because only a few visas and or green cards may be
granted to non-immediate relatives each year.
Therefore, there is a backlog of such people waiting to get
their visas. Depending
on the relationship, the wait can be as little as 18 months to as
much as 11 years.
Of course, there are many different
issues that arise in family immigration.
I have presented below some of the questions that we have
gotten related to this.
Q.
My
13 year old granddaughter Maria is in Russia.
Her mother, who is my daughter, recently died. Her father abandoned Maria and her mother before Maria was
born. I
want to adopt her, and bring my granddaughter to live with me in the
U.S. How can I do this?
A.
Unfortunately,
Maria would not be able to get any immigration benefits based upon
her relationship to you as a granddaughter.
However,
there is one possible solution to this problem. If you are a U.S. citizen, you may be able to adopt her and
bring here as your child.
In
general, the requirements are as follows.
First, you must be a US citizen, over 25 years old (if you
are married there is no age requirement).
Second, Maria must be considered an “orphan,” which means
she lost both her parents due to death, disappearance, abandonment,
etc.; or she lost one parent, and other parent is not able to take
care of her and has released her for adoption.
Third, she must be under 16 years old.
Fourth, you must have a “home study” done by an adoption
agency. This is
basically a report by a private agency that conducts an
investigation of you and your home environment to determine you
would be a good parent. Fifth, you must prove that you comply with the pre-adoption
requirements of your own state.
In
fact, in some cases people may already be considered “parents”
of a child without having to go
through this procedure.
You must have lived with, and had legal custody of,
Maria for at least two years.
“Legal custody” means a grant of legal authority over
your granddaughter from the Russian government, but it does not
necessarily mean an adoption. The grant of legal custody must have
occurred before Maria’s 16th birthday.
If
you have met these qualifications, then the INS will consider Maria
your child for immigration purposes, and she should be eligible for
a visa as an immediate relative.
Q.
I
have a green card, and I am trying to bring my wife here from
Russia. However, a
friend told me that my wife would have to wait several years until a
visa would be available to her.
Is that true?
A.
That
depends upon when you were married.
If you were married after you entered the country on an
immigrant visa (or after you became a permanent resident, if you
last entered the country on a nonimmigrant visa) then your wife
would have to wait several years for a visa.
If
this is the case, then the procedure would be as follows. First, you must file an immigrant petition, Form I-130, and
get approval from the INS.
Second,
the State Department must give your spouse an immigrant visa number.
This visa number would be your wife’s place in the line to wait
for a visa. Currently,
spouses of permanent residents have to wait about four years until
they can get a visa.
Third,
when the visa becomes available, your wife would have an immigrant
visa processed for her at a U.S. consulate (unless she is already in
the U.S., in which case she would obtain a green card through the
INS).
However,
it would be much easier if you married your wife before you entered
the country on an immigrant visa (or before you became a permanent
resident, if you last entered the country on a nonimmigrant visa).
In that situation, your wife would probably be eligible to
come here right away.
That
is because your wife would be eligible for “following-to-join”
benefits. To get your
wife a visa, you would simply have to get the INS to notify the
appropriate U.S. consulate that you have become a permanent
resident. You file Form
I-824 to the INS in order to accomplish this. When the consulate is notified, you would need to have your
wife contact the consulate to begin her visa processing.
There
is one very important to remember if you obtained your green card by
the lottery. To benefit
from this “following-to-join” rule, your wife must obtain her
visa before September 30 of the year whose lottery program you won.
In other words, if you got your green card from winning the
year 2000 lottery program (called “DV-2000), your wife has only
until September 30, 2000, to obtain her visa.
Otherwise, she would have to get her visa based on the
procedure mentioned above.
Q.
I
came here as a refugee a year and a half ago.
I have been working hard, and I finally think I am able to
support my wife and children. I
would like to bring them here as soon as possible.
Is there a special procedure for this?
A.
Yes.
If you have already
been admitted to the United States with refugee
status, you may apply for to allow your family to come here. This means that your wife and children may be granted refugee
status based on your own refugee status. Your family would be
classified as “following-to-join derivative" family members.
It
is important to remember that you have only two years after your
entry into the United States to apply for your family to come here,
so you need to move quickly.
Remember,
the relationship between you and your family members have been in
existence when you were admitted as a refugee, and must continue to
exist when you apply for them to come.
Also, your children must be unmarried and under 21 years of
age. To apply, you will
need to file Form I-730, (Refugee/Asylee Relative Petition)
FOR MORE INFORMATION:
Contact John Byrley at
tel: 410-719-1501.
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