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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Path to U.S. Citizenship

For foreign national who wishes to gain legal status and eventually citizenship in the United States, this may be achieved in a number of ways. Among the most common methods for a foreign national to achieve citizenship are either through employment or through family, including by marriage. Depending on the foreign national’s circumstances, other methods are also available.

The first step on the road to citizenship is gaining legal entry to the U.S. While foreign national may eventually become a citizen despite illegal entry, the illegality of the entry will make gaining citizenship much more difficult, not to mention having to face possible detention and removal from this country, civil or perhaps even criminal penalties if the reentry was made following an existing removal order.  One can gain entry in different ways, oftentimes using either immigrant or nonimmigrant visa categories; however, some non-immigrant visa categories may not translate to citizenship.

Next, in most cases a foreign national residing in the U.S. would have to first get permanent residency. Permanent residency, or a Green Card, can be awarded following entry with an immigrant visa or can be applied for from within the United States. A permanent resident can travel, re-enter, and work in the U.S. with fewer restrictions than someone with a non-immigrant visa.

Once permanent residence is obtained, the foreign national must live in the United States for five consecutive years before applying for citizenship, or three years if married to a U.S. citizen spouse.  In addition, a foreign national must be able to demonstrate they are of good moral character and take a U.S. history and civics test in English, unless otherwise exempted.

The remainder of this article is dedicated to the various ways one can enter and obtain permanent residency: First, the various possible visas available for temporary entry into the United States, or non-immigrant visas, which require further application for permanent residency; second, the various permanent visas foreign nationals can apply for directly; finally, special categories based on family relations and other unique situations.

<Gaining admittance to the US>:

Foreign citizens come to the U.S. for a myriad of reasons – to study, to be with family, to work, to escape persecution, or to share their culture. For every reason, there is generally a corresponding visa category. The U.S. has categories of visas for both immigrants and non-immigrants. Among the most common immigrant visas are family and employment-sponsored ones. In the non-immigrant category, there are temporary visas for those who visit for business or pleasure, treaty investors/traders, students, temporary workers, exchange visitors, those who are engaged to a U.S. citizen, intracompany transferees, those with extraordinary abilities or who are artists or entertainers, persons in religious occupations, and victims of trafficking and criminal activity. In addition, certain people may be eligible for the visa waiver program, which allows individuals from approved countries to gain entry into the U.S. without applying for a visa from their consulate, so long as they have a valid passport and pass the border inspection.

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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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Naturalization 101

NATURALIZATION AND REMOVAL

When a non-citizen wants to become a United States citizen, that person must undergo a process known as naturalization. There are many benefits in becoming a U.S. citizen. A U.S. citizen can travel more freely; he can vote; and he can apply for more jobs, including government positions. Citizens are more eligible to apply for public benefits such as full Social Security, Supplemental Security Income, food stamps, and have access to certain loans, mortgages and scholarships. Finally, U.S. citizens would not be subject to deportation or removal proceedings.

WHAT IS REQUIRED FOR SOMEONE TO BECOME NATURALIZED?

An immigrant must be older than 18, be a permanent resident for 5 years (or 3 years for those who have gained permanent residency through a U.S. spouse), demonstrate good moral character, prove continuous residence and physical presence in the U.S., and be able to read, write and speak basic English (this last requirement may be waived in certain cases such as if the person has a permanent impairment that prevents them from being able to learn and understand English). In addition, the permanent resident must file an N-400, undergo an interview, pass a civics and ethics test, and take the Oath of Allegiance to the United States.

WHEN IS NATURALIZATION NOT THE BEST OPTION?

Naturalization may not be the best course for every permanent resident. The naturalization application is usually the last time for the immigration officials to review the immigrant’s case and determine both whether the person is eligible to naturalize and whether he is eligible to stay in the United States. Any inconsistencies in the naturalization application, such as evidence of immigration violations, criminal conduct or abandonment of his permanent residence status, may actually subject the immigrant to removal proceedings. Someone who is interested in becoming a U.S. citizen but is not sure of his eligibility should consult with an immigration attorney.

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