Family-Based Immigration in the USA
Immigration based on a family relationship is a difficult and complex area of immigration law. While legislation such as the recently discontinued 245(i) has helped to ease the difficulty inherent in this specific area, many important issues and points need to be considered when commencing the family-sponsored immigration process. In effect since 1991, the current U.S. immigration selection system contains two main attributes. The first main feature is the implementation of a numerical cap for all immigration exclusive of the admission of refugees and adjustment of asylees, the adjustment of legalized aliens to permanent residents, and the recording of permanent resident aliens whose deportation is cancelled/suspended or who qualify for registry. The second essential feature is the separation of immigrants into subcategories, consequently ensuring that immigration within one category will not affect the availability of visa numbers under the other categories. Presently, the three primary categories for permanent residence immigration are family-sponsored, employment-based, and diversity immigrants.
General Family-Sponsored Immigration Process
Who May File
"Conditional Residency" and Marriage
For those individuals granted legal residency on the basis of marriage to a U.S. citizen or lawful, permanent resident, the "Conditional Residency" regulation may apply. If, at the time of the adjustment of status interview or application for admission to the United States, the underlying marriage is less than two years old, the immigrant status is granted for a conditional two-year period. The conditional residence subsequently expires on the second anniversary of the date the residency was approved, not two years from the date of marriage. In order to convert to unrestricted permanent residence status, the petitioner and beneficiary must submit a Joint Petition to Remove Conditional Residency (Form I-751) together with supporting documents that prove that the marriage was bona fide.
Because of the opportunity for immigration fraud through sham marriages and other forms of invalid and nonviable marriages, as a general policy, the USCIS carefully scrutinizes the "spouse" family-sponsored preference category.