IMMEDIATE RELATIVE OF USC: SPOUSE, PARENTS, UNMARRIED CHILD UNDER 21 YEARS OLD. ("ZORE PREFERENCE CATAGORY) Which is not subject to quota system.
This visa category permits the immediate relatives of United States citizens (USC’s spouse, parents, and unmarried children under 21) to immigrate without waiting in a quota or preference line. Mere marriage to a United States citizen or permanent resident does not automatically create resident status in the United States. The United States relative must file a petition on behalf of the foreign relative, and the foreign relative must undergo an interview by the United States government for admissibility to the United States as an immigrant.
However, less immediate ties than a spouse or parent of a United States citizen require that a person apply for his or her visa through a series of categories which may or may not be current at the time the person's application is approved.
There are FOUR basic categories of family preference, which are subject to quota system.
1. FB-1: Unmarried sons and daughters of United States citizens, who are over 21 years old.
2. FB-2: Spouses and minor children under 21 years (2 A), unmarried Adult sons and daughters of lawful permanent residents or Green Card holders (2B)
3. FB-3: Married sons and daughters of United States citizens if US citizen is at least 21 years old.
4. FB-4: Brothers and sisters of United States citizens if US citizen is at least 21 years old
BROADER DEFINITION OF IMMEDEATE RELATIVES:
Under INA 201(b) the U.S. Citizen's spouse, parent or child (under 21) is considered an Immediate Relative, and as such NO preference quota is required. It also extends to the following category of people.
1. Widow(er) of a USC if married for at least 2 years, Petitions within 2 years of spouse’s death, not remarried, and was not legally separated from spouse at time of his or her death.
2. Battered spouse, child or Parent. (see VAWA below).
3. Child born in wedlock (formerly called legitimate child)
4. Step child, whether legitimate or not, as long as child was 18 at time step-relationship was created.
5. Child legally legitimated before 18 if in custody of father at time of legitimation.
6. Child born out of wedlock (formerly called illegitimate child.
7. Children adopted before 16, and having 2 years of legal custody and residence with adoptive parents. However, if the family has already adopted a sibling, the second brother or sister who adopted may be under 18 at the time of adoption.
Furthermore, even under the tough new adjustment laws, a United States Citizen may petition for his or her Immediate Relative even if that relative has fallen out of status or has been engaged in unauthorized employment. The immediate relative must have entered the United States legally however unless they are eligible under 245(i) of INA.
A lawful permanent resident can file the petition on behalf of his/her: (FB-2 preference catagory)
1. Husband or wife
2. Unmarried child
There are varying waiting periods in these categories, depending on the backlog of prior applications on a worldwide basis and on a per country basis in the case of certain high demand countries. These waits are unpredictable, and can change from month to month, since the waiting line depends upon the number of people with earlier priority dates on their approved applications who actually complete the process when the time comes that the visa is available.
The Violence Against Women Act (VAWA): Self Petitioning as a Special immigrant
Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.
Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency as special immigrant (Form I-360). The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge.
Who is Eligible?
To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:
* Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.
* Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.
* Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent.
What are the Basic Requirements?
The self-petitioning spouse,
* Must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.
* Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
* Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.
* Is required to be a person of good moral character.
* Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.
The self-petitioning child:
* Must qualify as the child of the abuser as "child" is defined in the INA for immigration purposes.
* Any relevant credible evidence that can prove the relationship with the parent will be considered.
What is the Process?
Prima Facie Determination: Battered immigrants filing self-petitions who can establish a "prima facie" case are considered "qualified aliens" for the purpose of eligibility for public benefits (Section 501 of the Illegal Immigrant Responsibility and Immigration Reform Act (IIRIRA). The USCIS reviews each petition initially to determine whether the self-petitioner has addressed each of the requirements listed above and has provided some supporting evidence. This may be in the form of a statement that addresses each requirement. This is called a prima facie determination.
If the Service makes a prima facie determination, the self-petitioner will receive a Notice of Prima Facie Determination valid for 150 days. The notice may be presented to state and federal agencies that provide public benefits.
Employment Authorization: Self-petitioners and their derivative children who have an approved petitions are eligible for an Employment Authorization Card.
Adjustment to Permanent Resident Status: Self-petitioners who qualify as immediate relatives of U.S. citizens (spouses and unmarried children under the age of 21) do not have to wait for an immigrant visa number to become available. They may file to Adjust as a Permanent Resident. Self-petitioners who require a visa number to adjust must wait for a visa number to be available before filing.
Victims of domestic violence should know that help is also available to them through the National Domestic Violence Hotline on 1-800-799-7233
Status: Section 245(i)
Applying for Permanent Residence when you are Out of Status
The President has signed the "LIFE" Act into law. This new law extends Section 245(i) to those out of status Aliens wishing to apply for Permanent Residency in The United States.
The new Section 245(i) law allows those individuals who are out of status or illegally present in The United States to apply for permanent Residency (Green Card) without the need to return to their home country. The Alien must show that he or she was physically present in the United States the day the Law was signed by the President, December 21, 2000. The Alien must file for Permanent Residency by April 30, 2001.
Important key points include:
The Alien qualifies under Section 245(i) as long as he or she "FILES" a green card application by April 30, 2001. An approval by this date is not required.
The Alien will have to pay an additional $1,000.00 penalty to the INS. This penalty will not be due until the adjustment stage of the application. The adjustment stage may be many years, depending on the type of case.
The alien Does qualify under Section 245(i) if a Family or Relative based petition is filed on his or her behalf before the April 30, 2001 deadline. Therefore, even though a sibling United States Citizen petition may take 10 years for some countries for Adjustment, the filing of this petition before the deadline will grandfather the Alien sibling for adjustment when the priority date comes about 10 years later.
The alien may "transfer" his or her petition to another category if that category becomes available. For example, a sibling United States Citizen petitions her Alien brother before April 30, 2001. The brother may legally wait inside the United States for his priority date to become current (this may take 10+ years). However, four years down the road the brother finds an employer who is willing to sponsor him for a green card under Labor Certification. This sponsor may petition the brother via Labor Certification and the brother will be allowed to adjust, as he would be grandfathered under the 245(i) law.
