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19.2.1

19.2 DEFINING QUALIFYING FAMILY RELATIONSHIPS

Only qualifying relationships make a person eligible to go through the family-based immigrant and nonimmigrant process, including fiancs, spouses, children, parents, and brothers and sisters of U.S. citizens, and spouses, children, and adult unmarried children of legal permanent residents. 19.2.1Spouses And Marriage Qualifications A marriage must meet two major requirements to qualify as valid under the INA. First, the marriage must be legally valid, and second, the marriage must bona fide or legitimate at inception. Valid Marriage The validity of a marriage is based on the law of the place.4 However, even if valid under the law where the marriage took place, such a marriage cannot be contrary to public policy.5 For instance, polygamy, bigamy, and same-sex marriages may be legal in certain jurisdictions, but are deemed contrary to U.S. policy and thus, in the immigration context, are not valid marriages. In addition to marriages against public policy, marriages involving a person whose prior divorce was not final are generally considered void and not recognized under immigration law. This includes legal separation and those who file for annulment where annulment does not have the legal effect of divorce. Like marriage, a divorce must be valid under the law of the jurisdiction where the divorce was issued.6

Practice Pointer A client with a prior marriage not fully terminated may attempt a Declaration of Invalidity in a U.S. state court to cure the prior marriage problem. It is possible for such an instrument to relate back to cure, but relation-back depends on whether fraud or misrepresentation was involved in the immigration case.7

On the other hand, U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State have recognized as valid voidable marriages (e.g., marriage between minors without parental consent), common law marriages, and religious marriages so long as these are all legal in the state or country where the marriage took place.

Practice Pointer Colorado is one of a handful of states that still recognizes common law marriage. While sometimes advantageous, an attorney should fully understand the legal definition and evaluate client evidence necessary to prove common law marriage.

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Immigration Law for the Colorado Practitioner

Non-Traditional Marriages Same-sex marriages, regardless of whether they were legal in the jurisdiction performed, traditionally have not been recognized by USCIS due to the federal Defense of Marriage Act (DOMA), which prohibits same-sex marriage.8 Alternatively, a marriage between a person and a transsexual may be valid, as this type of relationship is not prohibited under DOMA.9 Proxy marriages may be permissible, but there must be proof of consummation.10 Strong evidence for the reason the couple could not conclude the marriage in person is recommended.

Practice Pointer With the announcement of the Obama administration to no longer enforce 3 of DOMA in litigation as of February 23, 2011, and the increase in jurisdictions allowing same-sex unions (five states in the United States and 10 countries), there was recent debate about whether same-sex marriage should be recognized as valid under the INA. However, USCIS issued a brief statement saying that it will resume adjudications using DOMA, despite the administrations new position on DOMA litigation.11

Bona Fide Marriage In addition to a legal marriage, all qualifying marriages must be bona fide or legitimate at in12 ception. The key focus is whether the parties, at the time they married, intended to establish a life together. Alternatively, those who do not intend to establish a life together at inception are engaging in a sham marriage. Essentially, the analysis comes down to what the behavior of the parties was before and after marriage. While divorce can be a factor in determining a sham marriage, it is by no means the only factor. Burden of Proof If a marriage petition has been approved, there is a presumption the marriage was bona fide.13 In contrast, there is a presumption of fraud where within two years of obtaining legal permanent resident status, the marriage is annulled or terminated, subjecting the foreign national to deportation unless the presumption is rebutted.14 Evidence The evidence to prove a bona fide marriage can vary, but it is ideal to provide a paper trail of the relationship since inception. This can be more difficult if the couple did not live together much or at all. Nevertheless, any evidence of communication phone records, Skype records, e-mails is helpful, in addition to evidence of residing together, such as leases, financial documents showing commingled lives, bills, auto or health insurance, pictures, and birth records of children. All of these documents over a period of time can prove the legitimacy of the marriage by corroborating the fact that the couple communicates and/or resides with each other. 19.2.2Child Child has many definitions under immigration law. The initial definition under the statute for child is unmarried under the age of 21.15 There are additional definitions of child as listed below under the same statute:

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Stepchild A stepchild qualifies for being sponsored so long as the stepparent relationship was created before the childs 18th birthday and the parents have a bona fide marriage.16 Historically, there used to be more stringent case law requiring parental involvement of the stepparent and stepchild, but this has become relaxed under court case law in the 1980s.17 A stepchild may still qualify even if the stepparents divorce.18

Practice Pointer So long as the step relationship was created prior to the childs 18th birthday, that child is eligible to have the stepparent file the petition, even after the childs 18th birthday.

Practice Pointer Please note that child is specifically defined under the Child Citizenship Act in 320 of the INA, and stepchild is not included; therefore, a stepchild cannot obtain automatic citizenship benefits available under this portion of the Act.

Out of Wedlock (Formerly Called Illegitimate) A child can obtain benefits through a natural father or mother, but a bona fide relationship is required if the father is petitioning for the child.19 Legitimated A child born out of wedlock who does not meet the definition of child can be a legitimated child when certain events take place and the child is under 18 at the time of legitimation and in the legal custody of the legitimating parent or parents at the time of legitimation. The typical case is when the natural parents marry after the childs birth. However, in some other family situations, it can become fairly complicated. The laws of the childs or parents residence must be reviewed closely to ensure eligibility. Adopted Prior to April 1, 2008, there were two avenues for adopted children to qualify as child: those adopted abroad who met certain criteria, defined as orphans, and those adopted in general, referred to as adopted.20 Adopted child requires the adoption to take place prior to the childs 16th birthday; two years of legal custody by the parent(s), and two years of residence with the parent(s). The custody and residence requirement can occur concurrently and both can also occur prior to or after the adoption date. However, legal custody prior to an adoption must be in the form of a custody award by the court or recognized government agency; sworn affidavits are not enough.21 Like the spouse relationship, the bona fide nature of the adoption can be evaluated and usually is where the adoption is between relatives or the natural parent is still residing nearby. There is an exception to the age-of-16 rule where the family is also adopting a sibling, whereby the age requirement increases to under 18.

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Immigration Law for the Colorado Practitioner

Practice Pointers The adoption does not have to happen in the United States, but it must conform to the laws in the jurisdiction where the adoption took place. Customary adoptions are recognized but very difficult to get approved.

Orphan An orphan is similar to but distinct from an adopted child. In general, the adoption must occur 22 abroad. This means that children in the United States as nonimmigrants or illegally would not be eligible for the benefit of an orphan petition. An orphan must also be adopted under the age of 16. In addition, the child must be an orphan due to death, disappearance, abandonment, desertion, separation, or loss of both parents. Abandonment requires that both parents willfully forsake all parental rights and obligations.23 Relinquishing by the parent to prospective adoptive parents or for specific adoption will not qualify as an abandonment. If there is only one parent, the parent must be incapable of providing proper care and irrevocably in writing release the child. There are additional requirements if the child was born out of wedlock. Finally, the adoption must be by both the husband and wife or if a single person, a person at least 25 years old. In addition to the location of the child, other differences between an orphan child and an adopted child are that an orphan petition requires a home study to determine whether there will be proper care for the child and an adoption petition does not. An orphan does not require two years of physical or legal custody of the child, while an adoption petition requires these elements to be met. Hague Convention Adoptees The Hague Convention, adopted by Congress in October 4, 2007, created a new definition of adopted child, essentially blending the two prior definitions to create a third definition at INA 101(b)(1)(G). It became effective April 1, 2008. For information on which countries are signatories, refer to http://adoption.state.gov. The analysis hinges first on whether the Hague Convention applies. If it does not apply, then one refers to the old definitions (adopted and orphan) and those procedures. However, if it does apply, there is no choice: one must comply with the Hague Convention criteria and procedures. To trigger a Hague Convention adoption, the country of both the parents and child must be Hague signatories. In addition, the parent(s) and child must have habitual residence in the Hague country. If both have habitual residence in a Hague country and the adoption took place after April 1, 2008, or did not take place yet, the Hague applies and INA 101(b)(1)(G) must be followed. Child Status Protection Act (CSPA) The Child Status Protection Act was approved and enacted on August 6, 2002.24 CSPA was a much-needed remedy for the problem of when children turned 21 years old before the permanent residence process was completed. Under the definition of child, a child became an adult at the age of 21 and as a result, immigrant visa benefits were immediately terminated or resulted in significant delay. Given the length of time it could take applicants to become permanent residents, this aging out situation was a harsh consequence. CSPA remedied this problem by freezing the age of the child under certain circumstances so that the child could still benefit from the petition, despite turning 21. The CPSA formulas vary depending on whether the beneficiary is an immediate relative or in the prefer-

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ence system. It also expands beyond the family-based system to cover children of asylees, refugees, and those under the employment-based categories as well.

Practice Pointer USCIS issued several policy memos on CSPA. Please refer to the Adjudicators Field Manual (AFM) at 21.2(e) for a helpful overview of their policies and eligibility requirements and age calculations to determine if the child can qualify under CSPA.

19.2.3Parents And Siblings Parents Parents of U.S. citizens can qualify for permanent residence, but parents of permanent residents cannot. If one wants to sponsor a parent and is a permanent resident, one must become a U.S. citizen. Parents include biological parents and stepparents. Just as a stepchild qualifies as a child, a stepparent qualifies as a parent for permanent residence so long as that relationship was created prior to the childs 18th birthday. Siblings Siblings of U.S. citizens also qualify. However, siblings are biological relationships only both full and half siblings; step-siblings do not qualify. Evidence of Relationships In general, the petitioner and qualifying child, parent, or sibling are not required, as in spousal relationships, to show a bona fide nature of the relationship. Proving the legal relationship is sufficient. For example, a U.S. citizen father who is sponsoring a child from abroad is not required to show he lived with that child since the childs birth. However, it is the applicants burden to prove the parentchild relationship, which typically includes birth records listing both the parent and child on the birth record.

Practice Pointer In many instances, a valid birth record cannot be located or has been registered much later than the time of birth. This is fairly common in Asia and Africa, where the listing of children on birth records is not emphasized. In such situations, secondary evidence should be submitted and can include other documents such as baptismal records, health and immunization records, school records, and sometimes affidavits to verify the parent-child or sibling relationship.

Practice Pointer Practitioners should refer to the Foreign Affairs Manual (FAM) at 9 FAM part IV app. C, Visa Reciprocity & Country Documents Finder, to determine which foreign birth, death, divorce, and marriage records are considered available and valid by the U.S. Department of State. This is very helpful in determining what the U.S. government will be expecting in terms of primary evidence and whether the case will need secondary evidence. It is available at http://travel.state.gov/visa/fees/fees_3272.html.

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Immigration Law for the Colorado Practitioner

19.3 SPONSOR-BASED FAMILY IMMIGRATION

19.3.1Overview A sponsor-based petition means that a qualifying relationship, as discussed above, must exist between a U.S. citizen or U.S. legal permanent resident and the foreign applicant and that the U.S. citizen or legal permanent resident sponsors that applicant for a nonimmigrant or immigrant visa. Without a sponsor, the foreign applicant is ineligible. This relationship must be maintained throughout the entire petition and visa or adjustment of status process. In the nonimmigrant visa context, there are three sponsor-based visas available K-1 fianc of a U.S. citizen, K-3 spouse of a U.S. citizen, and V visas for spouses and children of legal permanent residents. K-1 fianc visas are technically nonimmigrant visas, but operate as a hybrid visa. Although the applicant temporarily enters to marry a U.S. citizen, he or she is eligible to become a permanent resident if he or she in fact marries the U.S. citizen. As such, a K-1 visa applicant is screened in a similar fashion to those who are applying for immigrant visas. The K-1 fianc visa, the K-3 visa, and the V visas are discussed in detail at 19.8, below. In contrast to nonimmigrant visas, there are several types of sponsor-based immigrant visas. First, those who are defined as immigrants have intent to reside and live in the United States indefinitely. To qualify for family immigrant visas, there are two major groups of qualifying relatives: immediate relatives, and those who qualify under the preference system. Immediate Relatives Immediate relatives are foreign nationals who are the spouse, child, or parent of a U.S. citizen. If a parent is being sponsored, the U.S. citizen must be at least 21 years of age. Because these relationships are among the closest family connections that exist and immigration policy supports family reunification, Congress does not impose a numerical limit on how many immediate relatives can enter the United States each year. Family Preference System In contrast, the family-based preference system includes five qualifying relationships under the following preference framework: 1st preference: the unmarried sons and daughters of a U.S. citizen 2nd preference -A: spouses and children of a legal permanent resident 2nd preference -B: unmarried sons and daughters of a legal permanent resident 3rd preference: married sons and daughters of a U.S. citizen 4th preference: brothers and sisters of a U.S. citizen The preference system essentially means that there is a numeric limit or cap on the number of visas allotted for each of these categories and within each of these categories, based on the country of birth of the applicant(s). The preference system was established by Congress and is specifically described in Immigration and Nationality Act (INA) 201 (8 U.S.C. 1151). The preference system requires applicants to get in line, which is done by the filing of a qualifying petition under INA 201.

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The receipt date of such a filing is called the priority date. When a foreign national obtains a priority date, he or she must wait for that date to become current in order to be eligible to begin the immigrant visa or the adjustment of status process. Once a priority date is reached, the applicants country of birth can be charged with the use of a visa, and a visa number will be deducted from the amount allotted to that country. While all countries have a specific allotment, certain countries have too many applicants applying and are oversubscribed. Monitoring the Preference System Through the Visa Bulletin The U.S. Department of State (DOS) monitors the availability of visas based on the volume of approved petitions provided by the U.S. Department of Homeland Security/U.S. Citizenship and Immigration Services. Each month, the DOS makes public the progress of the visa waiting line through the publication of the Visa Bulletin, available at http://travel.state.gov. Certain countries have so many applicants that the DOS has broken out the visa waiting line or backlog accordingly: China, Dominican Republic, India, Mexico, and Philippines. All Chargeability pertains to the rest of the countries in the world. The Visa Bulletin will read something like this for the family-based preference system. All Chargeability 1st 01JAN05 2A 01JAN08 2B 15APR03 3rd 01JAN01 4th 01JAN00 China 01JAN05 01JAN08 15APR03 01JAN01 01JAN00 Dom Rep 01JAN05 01JAN08 01JAN97 01JAN01 01JAN00 India 01JAN05 01JAN08 15APR03 01JAN01 01JAN00 Mexico 22JAN93 01APR05 01JUL92 22NOV92 01JAN96 Philippines 01AUG94 01JAN08 01JUN99 22OCT91 15JAN88

To understand how to calculate an applicants priority date, refer to the priority date and look at the corresponding date above for the applicants preference category/country and calculate the difference in terms of months and years. For instance, a legal permanent resident spouse in Canada is in 2A in the All Chargeability category with a priority date of February 12, 2010. This is the day she got in line and the I-130 was filed. This applicant thus has over a two-year wait until her visa becomes current. (February 12, 2010, minus January 1, 2008). A Filipino sister of a U.S. citizen is in 4th preference, and with the same priority date, will unfortunately wait over 23 years or longer for a visa to become current (February 12, 2010, minus January 15, 1988).

Practice Pointer This movement assumes each month moves up 30 days. Some of the country-specific categories, especially Mexico and Philippines, sometimes only move one month per year. In essence, that makes it a possible 30- to 40-year wait! In other instances, the Bulletin can show more than 30 days movement in some categories, generally in the All Chargeability category. Unfortunately, the Visa Bulletin can also go back in time or retrogress, sometimes several years. Practitioners are advised to watch the Visa Bulletin monthly for movement in the family-based preference systems.

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Immigration Law for the Colorado Practitioner

Practice Pointer What happens if a family member starts in one type of relationship but things change? For example, the petitioner legal permanent resident becomes a U.S. citizen or an applicant child becomes an adult or gets married? These events are important to glean from a client because such events can automatically terminate a petition.25

19.3.2Differences Between Immediate Relative And Preference One huge advantage of being an immediate relative is the fact the foreign national applicant does not have to wait in line for a visa. As shown from the Visa Bulletin, this could take years, if not decades for some family relatives. As an immediate relative, timing or delay only refers to how long the process itself takes to file a petition and obtain an immigrant visa or adjust status to permanent residence. In many instances, this can take five months to one year under current processing times. Another advantage for an immediate relative versus a preference applicant is that certain exceptions apply if the foreign national applicant is present in the United States and is eligible to file for adjustment of status. In general, all applicants must show they have been maintaining lawful status up to the filing of the adjustment of status application.26 However, immediate relatives have two exceptions that apply, unlike other qualifying relatives: they can overstay their lawful status time and still be eligible for adjustment and they can work unauthorized and still be eligible for adjustment of status.27 This is very helpful for those applicants who have fallen out of status and may have too much unlawful presence. One advantage for preference applicants is that derivatives, or spouses and children of the main or principal applicant, are permitted to benefit or piggyback on the main applicants application. Derivatives do not exist for immediate relatives. All immediate relatives must qualify on their own accord. For example, if a U.S. citizen father wants to bring his under-21 child to the United States, she is the principal applicant and this is an immediate relative petition. If the unmarried under-21 child has a child, that child is not eligible to automatically join the principal applicant as an immediate relative. If the principal applicant was in one of the preference categories, then her child could immigrate with her either immediately, referred to as accompanying, or later, referred to as following to join.

19.4 FAMILY SPONSOR-BASED IMMIGRANT PROCESS

19.4.1Petition The first step in the sponsor-based petition process is for the U.S. citizen or legal permanent resident to sponsor or file a petition for the foreign national relative. This includes those qualified to sponsor a spouse, parent, or child, except for the orphan child and Hague Convention adoptees. This is done on a Form I-130, Petition for Alien Relative, and in general is filed in the United States in the jurisdiction of the petitioner.

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