Financial Sponsorship Requirements in Family Based Immigration

Family sponsorship is one of the most common ways a foreign national can become a permanent resident, or receive a Green Card.  The United States allows U.S. citizens or permanent residents to sponsor family members that include children, parents, spouses and siblings – and bring them into the country.

For more information on the specific visas, please see my article on Path to U.S. Citizenship.

Obtaining a visa through family sponsorship will require the sponsoring family member to complete an affidavit of support, which is a declaration of intent to financially support the immigrant family member. An affidavit of support is required because the Immigration and Nationality Act grants the Attorney General the power to deny entrance into the United States if the individual “is likely at any time to become a public charge.”  In another context, a sponsoring employer may also be required to submit an affidavit of support for a foreign national if the sponsored foreign national, or the prospective employee, is related to the employer or holds a 5% or more in ownership interest in the entity that filed the visa petition.

Therefore, whether applying to come to the United States or if already here, converting a temporary visa into permanent resident status, a foreign national must demonstrate they will not become a public charge through the filing of an affidavit of support.

 What is a Public Charge?

A public charge is an individual who is unable to support himself or herself without financial support from the government in the form of public cash or an individual who is expected to need long-term care facilities.

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An Introduction to Hardship Waivers

A person may be found to be inadmissible to the United States for many different reasons.  These include three- and ten-year bars for unlawful presence; crimes involving moral turpitude (CIMTs); prostitution; simple possession of less than thirty grams of marijuana; certain medical inadmissibility; and misrepresentation. To overcome such an inadmissibility, an I-601 Waiver will need to be filed.  The primary basis to qualify for an I-601 Waiver is to show “extreme hardship” to a qualifying relative.  In some cases, one may also qualify by showing there has been criminal rehabilitation. If someone had been previously removed from the United States, an I-212 Waiver for prior removal is necessary and is not based only on extreme hardship to a qualifying relative, although such a hardship can be used to strengthen a case.

Sometimes there are complications that result in a waiver not being an option. Some of the worst complications are those that create permanent inadmissibility. These include false claims to U.S. citizenship, drug convictions or guilty pleas after age eighteen, gang memberships, and previous findings of marriage fraud or frivolous asylum. There is very little to be done after a finding was made in a prior immigration proceeding that there was a frivolous asylum claim made after April 1, 1997.  However, in other instances it may be possible to challenge a finding of permanent inadmissibility.  For example, it may actually be possible to show that a finding of marriage fraud was an error, especially if the marriage is still intact. It may be possible to argue that a vague drug crime is not a crime pertaining to possession of a controlled substance. A person who had made a claim to citizenship may have been completely unwilling. A person may truly not be a gang member. These are difficult cases but may be worth pursuing as it may very well be someone’s only opportunity to return to his or her family.

The waiver process changes constantly, as does immigration law itself. If you feel that you or someone you know requires assistance in this area please contact our office.

Update on DAPA and Expanded DACA

In November of last year, President Obama announced a series of immigration policy changes.  Many of the changes, relating primarily to employment-based immigration, were uncontroversial and are going forward as planned.  For example, the administrative process for granting permanent residency (“green cards”) for certain workers is being streamlined to avoid backlogs in processing these applications.  In addition, the President directed USCIS (United States Citizenship and Immigration Services) to issue a memorandum clarifying what types of “specialized knowledge” applicants for L-1B nonimmigrant petitioners need to demonstrate.

Two of the provisions announced in November have met significant opposition.  The first is the expansion of DACA, or Deferred Action for Childhood Arrivals.  DACA currently allows non-citizens who were brought to the United States as children, and who meet all other program requirements, to be granted lawful presence in the U.S. for a renewable period of two years.  Being granted DACA allows the recipient to live without fear of removal, and makes work authorization available for the two-year period.  The expansion of DACA would increase the renewable time period of lawful presence to three years.  It also seeks to eliminate the requirement that the candidate be born before June 15, 1981, thereby enlarging the pool of eligible applicants.  It is important to note that under neither form is DACA a grant of lawful permanent residence or “asylum” of any kind.

The Executive Action also created a new program, entitled Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA (initially called Deferred Action for Parental Accountability).  DAPA would also grant lawful presence and eligibility for work authorization for up to three years, but to parents of U.S. Citizen or Lawful Permanent Resident children.  The qualifying son or daughter must have been born on or before November 20, 2014, when the announcement was made, and the parent must have been continuously present in the United States since before January 1, 2010.  As with DACA, other qualifications apply, including successful completion of a background check.  It is estimated that over four million people qualify to receive DAPA benefits.

The States Respond

Within hours of President Obama’s announcement last November, Maricopa County, Arizona Sheriff Joe Arpaio challenged the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. That decision is currently on appeal.

Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas, federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States. The states sought an injunction to stop the implementation of DAPA and the DACA expansion.  Texas based its standing to challenge the policy on the alleged harm the state and its citizens would suffer if DAPA were put into place.  Texas currently uses taxpayer funds to supplement the cost of issuing driver’s licenses.  The theory was that since DAPA would entitle recipients to obtain licenses, Texas would either have to spend millions of dollars subsidizing licenses for non-citizens, or completely restructure their fee system.  The court agreed this was a specific potential harm that qualified the petitioning states the power to bring the suit against the federal government.

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Same-Sex Marriage and Immigration

On Friday, June 26, 2015, the U.S. Supreme Court ruled in the case Obergefell v. Hodges that same-sex marriage is now legal nationwide.  The below article was written prior to the issuance of this decision and will be updated accordingly to reflect the current state of the law. 

Like many areas of law, immigration is dynamic.  U.S. Citizenship and Immigration Services (USCIS) monitors relevant case law and makes changes to immigration policy accordingly.  Same-sex couples have made significant legal strides in the past decade, and these victories are reflected in current USCIS policy.  It is crucial that anyone with immigration issues who is in a same-sex relationship finds an attorney who understands how LGBT (lesbian, gay, bisexual, and transgender) immigrants and their partners are affected by new regulations and procedures.

A Brief History of Immigration Law for LGBT People

LGBT foreign nationals were considered excludable from the U.S. on medical grounds until 1991. This was due to the historical classification of homosexuality as a mental illness.  The psychological and medical fields evolved and changed their stance, and public acceptance of homosexuality as a normal human variation has followed.  From the mid-1990s, individual states began allowing same-sex marriage or alternatives like domestic partnerships or civil unions.

Until recently, same-sex couples were unable to utilize their marital relationship as the basis for applying for immigration benefits, even if they were married abroad or in a state where the marriage was legal.  Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex marriages for federal programs like Social Security benefits or income taxes. This prevented USCIS from considering a same-sex spouse as an immediate family member for immigration purposes.  Similarly, any immigration benefit that would normally be derivatively available to the spouse or children of a nonimmigrant or an immigrant visa applicant was withheld from same-sex couples.  Immigration benefits were also denied for the step-children of same-sex partners.

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Green Card Through Marriage

Obtaining Permanent U.S. Residence Through Marriage

When a United States Citizen (USC) or Lawful Permanent Resident (LPR) marries a resident of another country, the foreign spouse can typically receive a Green Card, granting him or her permanent U.S. residence. In order for the foreign spouse to receive LPR status, the couple must follow the proper procedures, and the foreign spouse must meet certain qualifications. Obtaining a visa and LPR status through marriage has great advantages, one being the absence of statutory limitations (or caps) on the number of these visas that will be issued to immediate relatives each year. Immediate relatives are the spouses, parents and unmarried children under the age of 21 of U.S. citizens. A spouse of a LPR and any unmarried children under the age of 21 are subject to the annual visa cap and may qualify for a Green Card once a visa becomes available to them in the family-based second preference group.

Valid Marriages for Obtaining LPR Status

A couple may marry within the United States or abroad, so long as the marriage is legal and valid where it occurred, and is a type of marriage that U.S. Citizenship and Immigration Services (USCIS) will recognize.   Ultimately, the couple will need to demonstrate theirs is a bona fide marriage; not one entered into for the purpose of obtaining immigration benefits. The application process varies depending on whether the foreign spouse is already in the U.S. or needs a visa in order to travel here. In either scenario the USC or LPR must begin the process by filing an I-130 Petition for Alien Relative with USCIS.

Generally approval of the I-130 requires the petitioning USC or LPR spouse to provide by a “preponderance of the evidence” indications of a valid marriage, including (but not limited to) proof that:

  • The petitioner is a U.S. citizen or qualifying LPR;
  • Any previous marriages of petitioner and beneficiary (foreign spouse) have been legally dissolved; AND
  • Any and all evidence tending to demonstrate the marriage is bona fide and valid, including items such as: the marriage certificate, leases or bank accounts held jointly by the couple, affidavits of friends and family members attesting to the validity of the marriage, photos and evidence of a typical marital relationship, etc.

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