The immigration laws treat the adult, unmarried children of citizens differently than the adult, unmarried children of lawful permanent residents. Adult, unmarried children of U.S. citizens are placed in category F1 for family based visas (not to be confused with F1 student visas, a totally unrelated area of the law). Adult, unmarried children of lawful permanent residents are placed in category F2B.
Whenever an immigrant visa application is filed, a priority date is assigned. Think of a priority date as a line number.
Sometimes, the priority date for adult, unmarried children of U.S. citizens (F1) is behind the priority date for adult, unmarried children of lawful permanent residents (F2B). For instance, in the January 2015 Visa Bulletin, the State Department reported the processing of visa applications for the adult, unmarried children of LPRs (for all countries other than Mexico and the Philippines) with a priority date of April 1, 2008. But the agency was processing visa applications for the adult, unmarried children of U.S. citizens bearing a priority date of July 8, 2007. This means that the adult, unmarried children of LPRs are getting their visas about 9 months earlier than the adult, unmarried children of U.S. citizens.
The reason for this discrepancy is the cap on the number of available visas for each type of category. The line is longer for adult, unmarried children of U.S. citizens than it is for adult, unmarried children of lawful permanent residents.
Our office is frequently contacted by sponsors of immigrant visas for their adult, unmarried children. These people are considering becoming U.S. citizens but worry what would happen to their child’s place in the visa line. They worry that moving their son or daughter from F2B to F1 family based visa category will slow down their child’s case. Naturalization of the sponsoring parent automatically converts the F2B application to an F1 classification.
Luckily, the law allows a 2B son or daughter to opt out of transfering to the F1 preference category. This is achieved by filing a formal request with the USCIS office having jurisdiction over the case. The adult, unmarried child will be allowed to retain the original 2B priority date, assuming that the I-130 was properly filed. Section 204(k)2) of the INA specifically allows for the alien beneficiary to opt-out of the automatic conversion to F1 classification. This allows the beneficary to retain their original priority date.
USCIS has issued a memo which addresses this issue.
Children do become citizens automatically if the following is also true:
1. Your child is under 18 years old, unmarried;
2. Your child has entered the U.S. and has lawful permanent resident status (“a green card”);
3. Your child is residing in your legal and physical custody.
One key point is that if the parent that has become a citizen is the father, the child must have been born in wedlock or paternity of the child established before the child’s 18th birthday.
These have been the requirements since February 27, 2001. They apply to natural born and adopted children.They do not apply to step-children unless the child is legally adopted by the U.S. citizen. In order for your child to obtain proof of their citizenship status, it is necessary to obtain a Certificate of Naturalization.
**Please note that these requirements are different than the rules that apply to children who are born abroad and acquire citizenship at birth because they have a U.S. citizen parent.
If you haven’t already been looking around the internet to find out information regarding spouse visa interviews, it is my strong recommendation that you not do that. There is a huge amount of misinformation floating around cyberspace regarding green card interviews and you will do yourself no good by visiting chat boards dedicated to discussing this important topic.
This is true for several reasons.
First, many, many immigration cases are extremely straightforward and approvable. The stories of these cases rarely make their way onto the internet, except for our website. This results in a skewed number of stories regarding how a spouse visa interview went.
Second, you have no idea if the stories are true or false. For all you know, the horror story that you just found on the internet regarding an interview that went poorly is entirely false. Do you have any way of checking?
Third, every case is different. This means that different USCIS officers ask different questions and handle each case differently. You cannot assume that because a certain question was asked a certain way in one case means that the same question will be asked of you.
Each immigration office handles these interviews differently – what may be true in Portland, Oregon, may not be true in Atlanta, Georgia or St. Louis, Missouri. Even within the same office, different officers handle their interviews differently.
But the main reason that you should not waste your time reading about other peoples’ cases is that it will only stress you out, make you anxious and cause you headaches from all of the worry. Whatever may or may not have happened in another case has little to no bearing on your case.
So give yourself a break. If you have a question, ask your immigration lawyer. Don’t ask the uneducated masses on the internet. Trust me on this one.
Newly married couples sometimes have difficulty in proving the validity of their marriage. After all, how much evidence can you actually have when you are just getting started on your life together.
This is especially true if one spouse is in the U.S. and the other spouse is overseas. Here are some tips on how you can strengthen your case when you and your spouse live far apart:
1. Document the communications. If you use phone cards, keep them. If you use Skype, keep track of chats. You can keep a log of time spent talking each day. Letters, cards and hard copies of correspondence are helpful. We may also submit sample emails over a period of time to demonstrate the ongoing nature of the relationship.
2. Document all time spent in each others presence. If you are going overseas to be with your wife or husband, keep copies of everything related to the travel. This includes airfare receipts, hotel receipts, visa stamps, ticket stubs and any other evidence showing that you did things together.
3. Document the relationship with photos. Be sure to take lots of pictures while the two of you are together. One or two photos will not cut it. With many people having access to digital cameras, this should be relatively easy. Photos of you and your spouse in various locations and with different people are also persuasive evidence of the validity of the marriage. Engagement and wedding photos are certainly helpful, but everyday photos are also good at establishing the validity of the marriage.
4. Letters or affidavits from people familiar with the wedding and the relationship. Many times, we supplement our spouse visa applications with affidavits or letters from family members or friends who have personal knowledge of the wedding and the marriage. These are very helpful.
These are just some of the things that you can do to boost your chance of success at USCIS before your case is decided and sent to the National Visa Center.
Give us a call (314-961-8200) or visit our website (www.hackinglaw.wpengine.com) if you have questions.
Callers to our office and visitors to our website always have questions regarding whether their sibling will be able to bring a spouse and/or children with them when they come to the U.S. on the sibling of a US citizen visa application.
We understand why there are so many questions – it is because it really is confusing !!
The short answer is YES. Your sibling does not have to be single to come to the U.S. through your petition.
When you file an I-130 for your brother or your sister, they can bring their spouse and minor children with them. Minor children are children under the age of 21.
USCIS and the State Department refer to the spouse and minor children as “derivatives.” Separate petitions are not required.
A related question is – if I am a US citizen and I sponsor my brother or sister and their spouse and minor children, what happens if the children reach the age of 21 before a visa becomes available.
In typical lawyer-like language – it depends ! USCIS uses a complicated formula to figure out if the provisions of the Child Status Protection Act apply to allow the child to continue to be considered a minor under the original petition. One thing to keep in mind is that if the minor child ages out, but they are protected by the CSPA – that protection disappears if the child marries.
The long delays in sibling-based immigration visas cause lots of real world headaches. If you have questions or concerns about a particular application or simply want more information about how you might sponsor a brother or sister and their family to come to the U.S. on a permanent basis, please give us a call at (314) 961-8200.
In most spouse visa cases, several months go by between the initial filing/biometrics appointment and the actual interview. People often wonder why that is.
Let me explain what’s happening to your application:
1. Initial processing
First, your package is received by contractors working for USCIS. They accept and review the paperwork for an initial determination as to whether the required forms and supporting documents have been filed.
These contractors work with a checklist to help them review each document carefully. The submitted filing fees are converted to ACH (automated clearing house) and deducted directly from the bank.
The applications are then forwarded to the National Benefits Center in Lee’s Summit Missouri.
2. National Benefits Center (NBC)
The NBC was created by USCIS in 2001. The NBC’s mission is to process applications that are to be sent to a local service center for interview.
Each application (work authorization, travel document, spouse visa and green card application) is assigned a case number. The NBC was originally called the Missouri Service Center, so the first three letters of the case number are always MSC. The non-citizen spouse also receives an alien identification number (A#).
The NBC conducts a more thorough review of the application. If information or evidence is missing, the NBC sends out a request for evidence (which we discussed in an earlier email).
3. FBI Name Check
The third piece of the puzzle before an interview is scheduled is the FBI name (or background) check. After biometrics are conducted, the fingerprints are sent to the FBI for a check of local and national criminal databases.
The check is very thorough. Serious traffic, misdemeanor and felony arrests and convictions are identified. This is important because all arrests and convictions will be discussed at the interview.
We generally obtain the same records BEFORE filing so that we are adequately prepared for whatever may come up. It also demonstrates why it is important that you tell us everything regarding any interaction that you have ever had with the law.
These are the three stages that must take place before you and your spouse attend the green card interview. If you have any questions, please give us a ring at (314) 961-8200.