U.S. immigration law favors family unity. Under the INA Congress has generously provided for the immigration of relatives to the United States simply on the basis of their relationship to a U.S. citizen. This form of immigration is called “immediate relative” status. Immediate relatives consist of spouses, children, and parents of United States citizens.
There are many beneficial aspects of the INA that are available to immediate relatives. First and foremost among the benefits of immediate relative status is that they do not face an annual limitation on the number of visas available. One drawback is that there are no derivative beneficiaries under the category. This means that spouses and children of the immediate relative cannot gain status through the immediate relative who is immigrating. However, there are other options for these family members. In the case of a child of the immigrating immediate relative, the U.S. citizen who is sponsoring the immigrant spouse can also sponsor the child on a separate petition as a step-child.
Spouses of U.S. Citizens:
The term spouse has a very specific legal meaning under the INA. First, the marriage must be valid in the jurisdiction in which it was entered into. Thus, if you are married in the State of Texas, the marriage must be recognized as legally valid within the State of Texas. Second, the marriage must be recognized as carrying immigration benefits under the INA. Common law marriages, same sex marriages, proxy marriages, marriages that violate public policy, and fraudulent marriages cannot serve as a basis for immigration benefits. Third, in addition to the requirement that a marriage must be legally valid and recognized by U.S. law, the INA requires that the couple must have been free to marry at the time the marriage was entered into. Thus, all previous marriages must have been properly terminated by death, divorce or annulment in order for the present marriage to be valid.
One important aspect of immigration as the spouse of a U.S. citizen was enacted into law in 1986. Congress became increasingly concerned about marriage fraud, which was the process by which individuals would marry simply for purposes of gaining immigration benefits and would then divorce once permanent residence was granted. In order to address this concern, Congress put in place the marriage fraud amendments to the INA, which now require that an individual gaining lawful permanent residence based on a marriage to a U.S. citizen be granted conditional residence if their marriage was entered into less than two years prior to the grant of lawful permanent residence. Couples are required to file an application to remove conditions on residence within a 90 day period prior to the second anniversary of the grant of conditional permanent residence (please note this is not necessarily the second anniversary of the marriage). If the couple fails to file a joint application for removal of conditions then the lawful permanent residence of the non-citizen spouse is terminated and the non-citizen spouse faces removal from the United States.
It should be noted that there are several waivers to the joint filing requirement. First, if the marriage was entered into in good faith and was terminated by divorce, dissolution, or annulment and the failure to file jointly was through no fault of the non-citizen spouse then a waiver is available. Second, a waiver is also available if the non-citizen spouse would experience extreme hardship if they were forced to leave the U.S. following termination of their residence. Third, there is also a waiver for certain abused spouses.
Parents of U.S. Citizens:
Parents of U.S. citizens are also accorded immediate relative status. The sponsoring U.S. citizen son or daughter must be over the age of 21 at the time they petition for their parent.
Children of U.S. Citizens:
Unmarried children (under age 21) of U.S. citizens are also immediate relatives. This includes step-children of U.S. citizens.
Affidavits of Support:
Everyone coming to the U.S. is subject to inspection to determine whether they may be admitted to the country. If a person is deemed at risk of becoming a public charge then they cannot be admitted to the country or granted permanent residence. There is a requirement under the INA that U.S. citizens sponsoring an immediate relative complete what is called an affidavit of support in order to overcome the public charge grounds of inadmissibility. Congress specifically required that a U.S. citizen sponsoring an immediate relative for immigration benefits file an affidavit of support. In order to file an affidavit of support the sponsoring U.S. citizen relative must be over the age of 18, be domiciled in the U.S. and be able to guarantee the immediate relative they are sponsoring income equal to 125% of the federal poverty level (100% for members of the armed forces on active duty).
The affidavit of support issue is complex. Anyone considering filing an affidavit as either a sponsor or a joint sponsor should consult counsel regarding the implications of doing so.