Family-based Immigration

Talks of immigration reform have always been circling with every new administration and every new session of Congress. Every session, a bunch of Congressmen and Senators get together and introduce a new piece of legislation aiming to reform the currently outdated immigration laws. One such piece introduced in March 2009 is called the Development, Relief and Education for Alien Minors Act, more popularly known as the DREAM Act. This Act purports to provide a pathway for legal residency for the thousands of undocumented minors living in the United States. It is a promising piece of legislature if implemented correctly.

The DREAM Act allows undocumented high school graduates with good moral character (which essentially means no criminal background), who arrived in the U.S. as children and have lived here for a continuous period of five years a chance to gain legal status irrespective of their parents’ situation. Qualifying students would receive a six year period, conditional permanent residency status, within which the qualified student must either acquire two years of post-high school education or serve in the uniformed armed services for at least two years. This is an interesting piece of legislation because currently a child who entered the United States with his/her parents can only gain permanent resident status through said parent. With the passage of the Act, hopefully mistakes made by the parents will not be revisited upon their children.

What is a marriage visa? What is a K-3 Spousal visa? Is there a difference?

Simply enough, a marriage visa is an immigrant visa that allows the spouse of a U.S. citizen to enter the United States to live here on a permanent basis. It is also wildly popular as an I-130 and IR-1 but at the end of the day, they all mean the same thing. The process starts here in America with the U.S. citizen spouse; he/she has to file a petition with the U.S. Citizenship and Immigration Services. A marriage visa can be processed in one of two ways; if the foreign national spouse is in the United States on a valid visa, then the marriage visa petition can be filed concurrently with an application to adjust status. If the foreign national spouse is outside of the United States, the marriage visa petition is filed alone and the adjustment process is done overseas in what is called consular processing. Either way, the process can take anywhere from six to nine months. There have been instances in the past where the processing of the I-130 would take more than five months. This delay in processing affected those couples who were proceeding with consular processing. Therefore, Congress introduced and put to use the K-3 visa category. A K-3 visa is a non-immigrant visa category allowing foreign national spouses’ who already had a marriage visa petition filed on their behalf to travel to America and wait of the processing here. This category was introduced for the sole purpose of bringing married couples close together. It is not an alternative to filing a marriage visa petition. In fact, an applicant cannot qualify for a K-3 spousal visa unless an I-130 marriage visa petition has been filed first. The spouse can enter America on a K-3 and remain here until the I-130 is finished processing. Once the I-130 is approved, the spouse then has to file for an adjustment of status. It used to be that K-3 visas were processed faster than I-130 and therefore were more preferable. But now, the processing time for both types of visa is approximately the same time making the K-3 obsolete. It is cost prohibitive to file for both an I-130 and K-3 especially when they are both taking the same amount of time to be approved. If an I-130 is approved before a K-3, the U.S. Consulate will not go forward with the K-3 and will continue on to process the marriage visa.

The dedication and commitment of the members of our armed forces deserve our unwavering gratitude. The sacrifices made by our servicemen and women keep America safe from harm. It is important that as a grateful nation, we show our appreciation by providing for and taking care of our military families. Keeping this spirit in mind, New Jersey Senator, Robert Menendez introduced the Military Families Act, S. 2757 to the Senate floor on the eve of Veterans Day. This bill, if passed, purports to authorize adjustment of status for immediate family members who served honorably in the Armed Forces of the United States during the Iraq and Afghanistan and for other purposes. Currently, there are over 114,000 immigrants serving in the U.S. Armed Forces. The U.S. government and the military have implemented many procedures that help members of armed forces navigate immigration rules and regulations, including a road to U.S. citizenship.

U.S. Citizenship and Immigration Services remind certain travelers to they must obtain Advance Parole before traveling abroad. Individuals who have (1) been granted Temporary Protected Status; (2) a pending application for adjustment of status to lawful permanent resident; (3) a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203); (4) pending asylum application; or (5) a pending application for legalization must ask for permission to reenter the United States after traveling abroad. Advance parole is an extraordinary measure that allows an otherwise inadmissible individual to enter the United States due to compelling circumstances. If travelers attempt to reenter without proper prior authorization; their entry may be blocked and their pending applications denied or closed. Processing for an advance parole can take up to 90 days; therefore applicants must plan ahead and apply early.

Source: U.S. Citizenship and Immigration Services

In America we give a lot of credence to tradition and history. After all, learning from our past should be the way to improve our future. But the problem is that sometimes we forget to learn and repeat the same mistakes. For example U.S. Citizenship and Immigration Services cannot recognize a proxy marriage unless the marriage was consummated after the marriage takes place. USCIS takes this position based on a piece of legislation written in the 1950s. Proxy marriages are common place in the U.S. military and they allow couples who are physically separated to marry each other. So unless the proxy marriage is consummated after the date, U.S. immigration will not recognize the marriage and will not issue a marriage based immigrant visa to the foreign national spouse. Such conflict of law issues should be a focus for the new administration when immigration reform is put back on the agenda in 2010.  Source: