Q&A: Family Immigration

July 3, 2000

One of the most common types of problems we are presented with involve family immigration issues.

The U.S. Immigration system treats very differently a U.S. citizen's or permanent resident's close family members (parents, spouses, and unmarried and under-21 children) and other family members (siblings, married and over-21 children, and others).

The family members in the first category are called "immediate relatives." Immediate relatives have a much easier process and shorter wait to get their green cards than other types of relatives.

Other family members may also be eligible for a green card, as well, but there is a much longer wait. This is because only a few visas and or green cards may be granted to non-immediate relatives each year. Therefore, there is a backlog of such people waiting to get their visas. Depending on the relationship, the wait can be as little as 18 months to as much as 11 years.

Of course, there are many different issues that arise in family immigration. I have presented below some of the questions that we have gotten related to this.

Q.

My 13 year old granddaughter Maria is in Russia. Her mother, who is my daughter, recently died. Her father abandoned Maria and her mother before Maria was born. I want to adopt her, and bring my granddaughter to live with me in the U.S. How can I do this?

A.

Unfortunately, Maria would not be able to get any immigration benefits based upon her relationship to you as a granddaughter.

However, there is one possible solution to this problem. If you are a U.S. citizen, you may be able to adopt her and bring here as your child.

In general, the requirements are as follows. First, you must be a US citizen, over 25 years old (if you are married there is no age requirement). Second, Maria must be considered an "orphan," which means she lost both her parents due to death, disappearance, abandonment, etc.; or she lost one parent, and other parent is not able to take care of her and has released her for adoption. Third, she must be under 16 years old. Fourth, you must have a "home study" done by an adoption agency. This is basically a report by a private agency that conducts an investigation of you and your home environment to determine you would be a good parent. Fifth, you must prove that you comply with the pre-adoption requirements of your own state.

In fact, in some cases people may already be considered "parents" of a child without having to go through this procedure. You must have lived with, and had legal custody of, Maria for at least two years. "Legal custody" means a grant of legal authority over your granddaughter from the Russian government, but it does not necessarily mean an adoption. The grant of legal custody must have occurred before Maria's 16th birthday.

If you have met these qualifications, then the INS will consider Maria your child for immigration purposes, and she should be eligible for a visa as an immediate relative.

Q.

I have a green card, and I am trying to bring my wife here from Russia. However, a friend told me that my wife would have to wait several years until a visa would be available to her. Is that true?

A.

That depends upon when you were married. If you were married after you entered the country on an immigrant visa (or after you became a permanent resident, if you last entered the country on a nonimmigrant visa) then your wife would have to wait several years for a visa.

If this is the case, then the procedure would be as follows. First, you must file an immigrant petition, Form I-130, and get approval from the INS.

Second, the State Department must give your spouse an immigrant visa number. This visa number would be your wife's place in the line to wait for a visa. Currently, spouses of permanent residents have to wait about four years until they can get a visa.

Third, when the visa becomes available, your wife would have an immigrant visa processed for her at a U.S. consulate (unless she is already in the U.S., in which case she would obtain a green card through the INS).

However, it would be much easier if you married your wife before you entered the country on an immigrant visa (or before you became a permanent resident, if you last entered the country on a nonimmigrant visa). In that situation, your wife would probably be eligible to come here right away.

That is because your wife would be eligible for "following-to-join" benefits. To get your wife a visa, you would simply have to get the INS to notify the appropriate U.S. consulate that you have become a permanent resident. You file Form I-824 to the INS in order to accomplish this. When the consulate is notified, you would need to have your wife contact the consulate to begin her visa processing.

There is one very important to remember if you obtained your green card by the lottery. To benefit from this "following-to-join" rule, your wife must obtain her visa before September 30 of the year whose lottery program you won. In other words, if you got your green card from winning the year 2000 lottery program (called "DV-2000), your wife has only until September 30, 2000, to obtain her visa. Otherwise, she would have to get her visa based on the procedure mentioned above.

Q.

I came here as a refugee a year and a half ago. I have been working hard, and I finally think I am able to support my wife and children. I would like to bring them here as soon as possible. Is there a special procedure for this?

A.

Yes. If you have already been admitted to the United States with refugee status, you may apply for to allow your family to come here. This means that your wife and children may be granted refugee status based on your own refugee status. Your family would be classified as "following-to-join derivative" family members.

It is important to remember that you have only two years after your entry into the United States to apply for your family to come here, so you need to move quickly.

Remember, the relationship between you and your family members have been in existence when you were admitted as a refugee, and must continue to exist when you apply for them to come. Also, your children must be unmarried and under 21 years of age. To apply, you will need to file Form I-730, (Refugee/Asylee Relative Petition)

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.

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