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Green
Card - Family Petitions
A
person who marries a citizen can qualify for immigration in this
category. The marriage must not be a "sham," of
course–that is, one entered into in order to obtain an immigration
benefit. The marriage must be legally entered into–that is, both
parties were free to marry, all prior divorces were legal, and the
marriage formalities themselves are recognized as legal in the
jurisdiction where the marriage occurred. The marriage must still
legally exist–the parties cannot be divorced or legally separated.
But the marriage need not be viable–even if the parties are
separated, if they have not entered into a legal separation
agreement or gotten divorced they still have a valid relationship
for immigration purposes.
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The spouse of a
citizen whose marriage was created within two years prior to being
granted permanent residence is granted residence on a conditional
basis. He or she is a full permanent resident in all
respects–eligibility for employment, ability to travel freely in
and out of the United States, accumulation of time toward compliance
with residence and physical presence requirements for naturalization
as a U.S. citizen–but that residence is subject to termination
within two years after it is granted if the marriage has terminated
by divorce or annulment during that period, or the marriage turns
out to be sham.
Battered Spouses of
U.S. Citizen
Battered spouses of citizens may also file their own immediate
relative petitions. To qualify, the alien spouse must be a person of
"good moral character," must have entered the marriage in
good faith, must have resided in the United States with the citizen
spouse, and must have been battered or subjected to "extreme
cruelty" by the citizen spouse. Any credible evidence submitted
with the spousal petition with regard to the treatment of the alien
spouse will be considered by the INS. The law provides identical
benefits to battered children of a U.S. citizen. The
self-petitioning procedure for battered spouses was enacted in 1994
as part of the Violent Crime Control and Law Enforcement Act of 1994.
Widowers of U.S. Citizen
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Spouses of
deceased citizens qualify as immediate relatives for whom
immigration may be sought under some circumstances. In order to
qualify, the alien must have been the spouse of the deceased citizen
for at least two years and must not have been legally separated at
the time of the citizen's death. The alien spouse must file an
immediate relative immigrant visa petition within two years after
the date of death and must still be unmarried at that time. Alien
spouses seeking residence on this basis must use a different form
than other family-sponsored immigrants, Form I-360, which they can
file themselves. The unmarried minor children of the alien spouse
may be included in the petition as well, under a provision of the
technical corrections bill passed by Congress in October 1994.
Parents
of U.S. Citizen
Parents of U.S. citizens are eligible to immigrate as immediate
relatives, but only if the citizen is 21 years of age or older. The
citizen must be able to qualify as a child of the parent according
to the rules just outlined, except of course that the citizen must
be over the age of 21 and can be married. To determine whether a
parent qualifies for immigration, then, it is essential to look at
the parent-child relationship in the same way as you would if you
were determining whether a child would qualify.
Spouses
and Unmarried Sons and Daughters of Permanent Resident Aliens
The
second family-sponsored preference is set aside for two groups:
preference 2A includes spouses and children–the immediate family
members of permanent residents, and preference 2B includes the rest
of the current second preference category, unmarried adult sons and
daughters of residents. The entire preference category is allotted a
minimum of 114,200 annual visas. Any visas unused by the first
family-sponsored preference will go to the second family-sponsored
preference. 77% of the annual visas goes to the 2A sub-preference
and the other 23% goes to the 2B sub-preference. There is a waiting
list for visas to immigrate in this category, regardless of the
alien's country. The rules for determining who is a spouse are the
same as those set forth for citizenship petitions. The sons and
daughters of residents must either presently qualify as
"children" as that term is strictly defined in the
immigration law, or have qualified as children when they were under
21 years of age. The immediate family members of qualifying aliens
can also immigrate with them in the second preference category.
Example: The child of a formerly married but presently unmarried son
or daughter of a resident can immigrate with the son or daughter.
NOTE: Spouses of permanent residents whose marriage was created
within two years prior to the grant of permanent residence are given
residence on a conditional basis. Residence can be terminated up to
two years after it was conferred if the marriage has ended in
divorce or annulment or it turns out that it was a sham marriage
entered into for immigration purposes.
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