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The Familia Immigration Petition

Applying for permanent residency in the United States can be accomplished through adjustment of status or consular processing. Those who get the residence receive a document called a “green card”.  The process of getting a green card requires strategy and a fact-intensive analysis. Considering that the United States Citizenship and Immigration Services (USCIS) only approves a limited number of visas it is important for applicants to have a knowledgeable team by their side to guide them through the process and protect their interests against potential pitfalls which could harm the application. At the Law Office of Giselle Ayala Mateus PC, we have the resources to provide the strong counsel applicants need to maximize their chances of success.

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Many people in the United States, who have family members living in other countries, wonder if they can bring them to the U.S. The first thing to emphasize is that it is not true that, if an immigrant settles in the United States, he/she can obtain green cards (permanent residence) for his/her entire extended family, and so on. Those who can request a green card for their relatives are called “sponsors”. US citizens and permanent residents can act as a “sponsor”. The following table illustrates this information:

Immediate Relative: These visas are based on a direct family relationship with a U.S. citizen, such as a spouse, child, or parent. The number of immigrants in these categories is not limited to any fiscal year.

Family Preference: These visas are for specific more distant family relationships with a U.S. citizen and some specific relationships with a Lawful Permanent Resident (LPR). The number of immigrants in these categories is limited each fiscal year.

Immigrant Visa: It is a permanent visa that allows an alien to live and work permanently in the United States.

There are specific steps to take for a U.S. citizen or permanent resident to successfully complete an immigration petition for a relative. U.S. immigration laws provide a variety of ways for people to apply for permanent resident status, which is documented by means of a Green Card. A person may be eligible to apply for a Green Card through family, a job offer or employment, refugee or asylum status, or a number of other special provisions.

Step 1: Submit the petition

To begin the process, a citizen or permanent resident will need to mail an eligibility petition on USCIS Form I-130, along with supporting documents. The supporting documents are to prove that both the petitioner (citizen or resident) and the applicant (the future immigrant) meet the requirements of the law, among others, that their family relationship is real.

Step 2: USCIS makes a decision

Once USCIS receives the petition, an immigration officer is assigned to the case to consider whether to approve or deny the application. If the process is approved, the next step depends on whether the applicant wants to complete his process within the United States whether the applicant must complete the process outside the U.S.

If a person must leave the United States to complete the process, once the I-130 petition is approved, the case file will be sent to the National Visa Center for further processing. If the petition is denied, the petitioner may file a new petition after determining what changes need to be made to promote approval.

Step 3a: Apply for residency within the US.

Certain individuals who are physically present in the United States and have entered the United States legally, with a visa, can use the adjustment of status process to apply for residency without leaving. An application for adjustment of status generally includes a packet of forms and supporting documents that include:

  • I-485, Application to Register Permanent Residence or Adjust Status
  • I-864, Affidavit of Support
  • I-693, Medical Examination Report, and Immunization Record I-765, Application for Employment Authorization (optional)
  • I-131, Application for a travel document (optional)

Step 3b: Relatives in preference categories awaiting visa availability.

This step is only carried out if the applicant is in a Family Preference group. In this case, if the applicant is not an immediate family member, the immigrant joins a waiting list and will generally wait at least a year before learning if a visa is available.

Step 4: The immigrant applies for a Visa or Green Card

If the applicant's petition has been approved and a visa is available, the applicant must submit an application for permanent residence. This is usually done by applying for an immigrant visa at a US consulate, using Form DS-260. This process is known as consular processing. The applicant must complete various forms, provide documents and take a medical examination.

Do I need a Fiancé or K-1 visa?

Unless there are compelling reasons to apply for a fiancé visa, which should be discussed with an attorney, a fiancé visa can be expensive and generate unnecessary expenses. It is preferable to get married and then start the residency immigration process.

Where should I get married?

Unless a couple has been married for several years outside the United States, the best strategy is to marry in the United States and submit all documents within the country.

What do I do if I have documents in a language other than English?

 All documents must be translated into English. A certified translation must be submitted.

Do I need a lawyer for my interview with the immigration officer?

The presence of a lawyer at the interview with the immigration officer is not mandatory. However, the presence of an attorney can make a difference, especially in complex cases. If you decide to attend if a lawyer, always answer with the truth, state if you do not understand something or have questions, and do not forget to take with you both originals and copies of all documents already sent.

Petitions based on marriage.

A permanent resident or US citizen can apply for permanent residence for her spouse in the United States or can apply for an immigrant visa if the spouse is abroad. For a petition to be successful, it is necessary that the petitioner and the applicant be able to prove that the marriage is real, that is, at the time the marriage was contracted, the couple had the real purpose of making a family life and not the simple intention of obtaining an immigration benefit. A marriage abroad that is legal in the jurisdiction where it took place is generally recognized in the United States, unless there is a compelling reason not to recognize it, for example, bigamy. Same-sex marriage is recognized.

Don't get married for permanent residency! This act is fraudulent and criminal and will prevent you from fixing your situation in the United States in the future. In many cases, USCIS will find out and the beneficiary, if in the United States, will be placed in removal proceedings.

Take care when marrying a USC or permanent resident in the United States while you have a tourist visa or other non-immigrant visa. USCIS can examine serious visa fraud issues during the process.

Please note that if a United States citizen or permanent resident marries someone during their removal proceedings (after a Notice of Appearance or Notice of Appearance has been issued, even if no court date has yet been set), the couple must demonstrate to a high standard, with is convincing evidence, that the marriage was entered in good faith (that it is not a sham to avoid deportation).

If the marriage has lasted less than 2 years, the applicant will be granted a two-year conditional green card. Two years after conditional residency is granted, the couple must jointly request the removal of the conditions. Divorce or separation during the two-year conditional residence period can create problems for a spouse to acquire permanent resident status.

How can I get a green card?

Having a Green Card (officially known as a Permanent Resident Card allows you to live and work permanently in the United States. The steps you must take to apply for a Green Card will vary depending on your individual situation. There are five ways to get a green card.

How do we conduct the green card petition process?

Read our post here: What is a marriage-based green card petition? Why to hire an attorney?

At the Law Office of Giselle Ayala Mateus PC, we evaluate the characteristics of your case, the different venues that may take you to get a green card, and your specific concerns. Each case is different, we take time to understand your situation and then design a strategy. 

The I-130 Petition

Read our post here: The I-130 petition... Why would I file only this form...?

The first you must file before a green petition is granted is the I-130 Petition for an Alien Relative. U.S. citizens and lawful permanent residents (LPR) use this form to establish the existence of a relationship with an eligible relative who wishes to come to or remain in the United States permanently and get a Permanent Resident Card (also called a Green Card).

How do I petition for Family Members outside the United States?

Read our post about this: Getting a green card for a family member outside the US.

Once an applicant is the beneficiary of an approved immigrant petition and an immigrant visa number is available, there are two ways to apply for lawful permanent resident status. If the applicant is outside of the United States, the applicant may apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This pathway is referred to as consular processing.

How does the Priority Date look like?

Read our post about this: The priority date.

Priority date: This is the date that U.S. Citizenship and Immigration Services (USCIS) received your I-130 petition. Think of this date as your place in the green card line. You can find your priority date on the I-797 form mailed by USCIS approving your I-130 petition.

Even if I got my residence, Can prior issues affect my citizenship petition?

What Would Happen If I get Divorce?

You may wonder if an uncontested divorce is right for you. If you and your spouse can agree on the basic tenets of divorce, such as child custody, spousal support, and property division, you may be good candidates for an uncontested divorce. Two things are essential for this kind of divorce to be successful – you and your spouse must be able to work cooperatively to reach an agreement, and your attorney must be skilled at negotiating the complexities of a divorce.

In an uncontested divorce, the spouses agree on all of the issues required to end their marriage, so there's no need for the judge to hold a trial. In New York, an uncontested divorce is where both spouses agree to end their marriage and have settled all of the divorce-related issues in their case, such as division of property and alimony.

How is an annulment different from a divorce?

Unlike a divorce that ends a valid marriage, an annulment establishes that the marriage is not legally valid, and the grounds for annulment are different from a divorce. To get an annulment, one must prove ONE of the following:

  • Bigamy: one of the parties was still married to someone else at the time of the second marriage.
  • Physical Incapacity. Either spouse was incurably unable to have sexual intercourse at the time of the marriage.
  • After marriage, either spouse becomes incurably insane for five (5) years or more.
  • Mental Incapacity. Spouse is unable to understand the nature, effect and consequences of marriage because of mental incapacity.
  • Spouse agreed to marry as a result of force or duress by the other.
  • Fraud (most common ground): the consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud.

Download our free guide here!

Starting the Divorce…

You will need to buy an Index Number at the County Clerk's Office. If you are filing for an uncontested divorce, there are forms available for your use if you have no children under 21 and your marriage has been over for at least 6 months. After the papers have been signed and notarized, it is a good practice to make copies of all papers. The following documents are submitted to the County Clerk's Office to commence:

  • Summons With Notice or Summons and Complaint
  • Notice of Automatic Orders
  • Notice Concerning Continuation of Health Care Coverage
  • Settlement Agreement, if you have one.

Where do I file the Divorce?

In New York State the Supreme Court is the only court that handles divorce cases.

Is New York a No-Fault State?

New York allows for the “no-fault” ground of irretrievable breakdown of the marriage for at least six months before filing for divorce. “Irretrievable breakdown of the marriage” means that you and your spouse no longer want to be married, and it's not likely that you and your spouse will get back together. (N.Y. Dom. Rel. § 170 (7).)

Benefits of an Uncontested Divorce

Since there's no trial, there's no need to hold a hearing or disclose the intimate details of the broken relationship, which makes the process much private, quicker and less expensive than a contested divorce.

Uncontested Divorce Requirements

In New York, one can file for an uncontested divorce when both spouses agree about the following:

  • To divorce
  • The grounds of divorce
  • How to divide marital property and debt.
  • Who gets custody of the children and parenting time for the other parent.
  • Whether the non-custodial parent will pay child support and how much.
  • Whether either spouse will pay spousal support (alimony.)

The Residence Requirement

To able to file for divorce in New York, one must also have satisfied the “residency requirements” of the law. This means that:

  • at least one spouse should have been living in New York for at least two continuous years immediately before filing for divorce, or
  • at least one spouse has been living in New York for at least one continuous year immediately before filing for divorce and,

the couple either got married in New York, or lived in New York as a married couple, or the grounds for your divorce happened in New York. (N.Y. Dom. Rel. § 230.)

The Uncontested Divorce Process

An applicant, who is identified as Plaintiff must complete the following papers to obtain an uncontested divorce in New York:

  • Notice of Automatic Orders
  • Notice Concerning Continuation of Health Care Coverage
  • Summons With Notice (Form UD-1 or UD-1a)
  • Verified Complaint (Form UD-2)
  • Affidavit of Service (Form UD-3)
  • Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and Affidavit of Service (Form UD-4a)
  • Affirmation of Regularity (Form UD-5)
  • Affidavit of Plaintiff (Form UD-6)
  • Affidavit of Defendant (Form UD-7)
  • Child Support Worksheet (Form UD-8)
  • Support Collection Unit Information Sheet (Form UD-8a)
  • Qualified Medical Child Support Order (“QMCSO”) (Form UD-8b)
  • Note of Issue (Form UD-9)
  • Findings of Fact/Conclusions of Law (Form UD-10)
  • The judgment of Divorce (Form UD-11)
  • Part 130 Certification (Form UD-12)
  • Request for Judicial Intervention (“RJI”) (Form UD-13)
  • Notice of Entry (Form UD-14)
  • Certificate of Dissolution of Marriage

The Summons

The first step in obtaining an uncontested divorce in New York is to purchase an Index Number and to prepare the Summons with Notice or Summons and Verified Complaint. It is necessary to mail these documents to County Clerk accompanied by two copies.

Serving the other spouse

The other spouse, or Defendant, must be served with copies of all documents and the Affidavit of Defendant. It is also a good practice to provide the Defendant with a copy of the instructions on how to fill out the Affidavit of Defendant.

The Affidavit of Defendant must be returned within 20 days if Defendant is in the U.S. or within 30 days if Defendant is overseas. Then, the applicant for divorce or Plaintiff must complete an Affidavit and the person who served the papers must provide an Affidavit of Service. Then, it is possible to place the case on the court's calendar.

Obtain an appearance date…

By placing the case on the court's calendar, Plaintiff gets a court date. To get this date, the following steps are necessary:

The plaintiff must complete Forms UD-3 through UD-13.

  • Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and Affidavit of Service (Form UD-4a)
  • Affirmation of Regularity (Form UD-5)
  • Affidavit of Plaintiff (Form UD-6)
  • Affidavit of Defendant (Form UD-7)
  • Child Support Worksheet (Form UD-8)
  • Support Collection Unit Information Sheet (Form UD-8a)
  • Qualified Medical Child Support Order (“QMCSO”) (Form UD-8b)
  • Note of Issue (Form UD-9)
  • Findings of Fact/Conclusions of Law (Form UD-10)
  • The judgment of Divorce (Form UD-11)
  • Part 130 Certification (Form UD-12)
  • Request for Judicial Intervention (“RJI”) (Form UD-13)

If there are children together under age 18, the Addendum Form 840M.

The Plaintiff must complete the Certificate of Dissolution of Marriage, the postcard, and the Divorce and Child Support Summary Form, if applicable.

Submit all of your paperwork to the judge.

The judge will review the documents and, if approved, will sign the Judgment of Divorce. After the judge signs the Judgment of Divorce, it is necessary to file and enter it in the County Clerk's Office. This process differs depending on the county in which papers are filed, Lastly, the Defendant must be served a copy of the signed and entered Judgment of Divorce with a completed Notice of Entry

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