SERVICES

Family-based Immigrant Visa

Overview

A foreign individual may acquire legal permanent residency through a qualifying family relationship. These relationships include:

• Parents, spouses, sons, daughters, brothers, sisters of United States citizens
• Spouses, unmarried sons and daughters of legal permanent residents

Under the Family Preference System, visa number availability is based on the relationship of the sponsors and family beneficiaries.

The most popular form of family-based immigration is based on marriage to a United States citizen.

Attorney Kornfeld handles the following matters pertaining to family-based immigration:

• Work authorization
• Travel authorization
• Bars to entering the United States
• Fraud waivers
• Overcoming other grounds of inadmissibility (criminal, health-related, etc.)
• Affidavits of support (a requirement for family-based immigration) and the new minimum income requirements for sponsoring an alien

Section 245(i): Allowing Certain Illegal Aliens to Apply to Adjust Status in the U.S.

The Legal Immigration Family Equity (LIFE) Act Amendments of 2000 allow certain alien relatives who are in the United States illegally to remain in the United States and obtain legal permanent residency.  Under the LIFE Act, an alien who has violated the terms of his lawful status in the United States or has entered the United States illegally may apply for adjustment of status under INA §245(i) as long as the alien is the beneficiary of an employment-based or family-based visa petition or the beneficiary of an application for labor certification filed on or before April 30, 2001. Adjustment of status allows the illegal alien family member to remain in the United States and file for legal permanent residency. Adjustment of status offers a great advantage to illegal aliens, many of whom would need to leave the country to obtain immigrant visas abroad and then be subject to the three or 10-year bars to reenter the United States.

The alien must pay a penalty fee of $1,000 along with the application to adjust status. Alien beneficiaries of labor certifications applications or immigrant visa petitions that were filed subsequent to January 14, 1998, and up until April 30, 2001, must also demonstrate that they were physically present in the United States on December 21, 2001, the date the LIFE Act was enacted. Other types of applications and petitions – such as asylum applications, diversity visa applications and diversity visa lottery-winning letters – do not serve to grandfather the alien for purposes of §245(i).

Affidavit of Support Requirements

In order to sponsor a family member for legal permanent residence under one
of the above categories, the petitioner must file Form I-864 ‘Affidavit of Support.’The following are the main requirements of the Affidavit of Support:

1. The sponsor of the intending immigrant must be: (i) a US citizen, US national, or lawful permanent resident (LPR); (ii) at least 18 years of age; and (iii) domiciled in the US or a US territory or possession.
2. The affidavit is legally enforceable against the sponsor in actions brought by the sponsored immigrant or by the states to recover benefits paid to the immigrant.
3. The sponsor must now demonstrate “the means to maintain an annual income equal to at least 125 percent of the federal poverty line.”
4. The sponsor must agree to “provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty income line,” reimburse any federal or state agency that provides a means-tested benefit to the sponsored alien, agree “to submit to the jurisdiction of any Federal or State court” for enforcement of the affidavit, and inform the US Citizenship and Immigration Services ( USCIS) of any change of address.
5. The sponsor must submit a copy of the most recent filed Federal tax return and all attachments or submit a statement affirming why the sponsor was not required to file Federal tax returns for the last year. The sponsor should be ready to present Federal tax returns filed for the last three years because the USCIS has the discretion to request such documentation.