AskVisalaw.com

Posted on: May 29th, 2018
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In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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QUESTION: I have a US citizen daughter and she will be 21 years old soon. We know that when she is 21 she will be able to sponsor me and my wife, but we have another child who will be 10 years old by that time. Will we be able to apply for us and our youngest child through one application, or are we going to have to make separated applications?

ANSWER: You are correct that US citizens can apply to sponsor their foreign national parents for US Permanent Residence (green card) once the US citizen son or daughter is 21 years old or older. Parents of US citizens who are sponsored by their US citizen sons or daughters fall within a category called Immediate Relatives. Other individuals that fall within the Immediate Relative category are spouses of US citizens and unmarried children of US citizens where the child is under the age of 21.

The benefit of being an Immediate Relative is that there is currently no limit on the number of visas that can be issued to those who are being sponsored by their US citizen relative in the Immediate Relative category. This means that Immediate Relatives do not have the required wait for a visa to become available that most other visa preference categories have. You can see my other posts about visa wait times and the DOS Visa Bulletin.

But the one downside of the Immediate Relative category is that Immediate Relatives are not allowed to have derivative beneficiaries, meaning that spouses and minor children of Immediate Relatives are not eligible to obtain Permanent Residence through Adjustment of Status (I-485) or an Immigrant Visa along with their US citizen spouse or parent.

So a US citizen can file an Immediate Relative petition for her parents. A separate petition would be required for each parent. But where the parents have another child, that child is not able to benefit from the petition filed for the parents and cannot come to the US as a permanent resident with his/her parents.

A US Citizen can file a petition for their sibling, under the Family Fourth (F-4) preference category. But the wait time for a visa to become available for the petition (currently more than a decade) makes it so that this is not a viable solution to this problem.

However, once the parent comes to the US as a Permanent Resident, they can file an immigrant petition for their unmarried child who is under 21, under the Family Based Second Preference (F2A). It takes some time, currently a couple years, for a visa to become available under the F2A preference category, so some families will leave the younger child with a family member while both parents go to the US as Permanent Residents and file a petition(s) for the younger child, other families will have one parent go to the US and file a petition for both their spouse and the younger sibling. You should be warned that one is required to maintain the US as their permanent residence in order to maintain the legal immigration status of US permanent residence. Parents, for example, who come to the US to obtain permanent residence only to then move back to their home country to live and wait for a visa for their spouse or child risk the US government determining this move to be a failure to maintain the US as their permanent residence, constituting an abandonment of their US permanent residence.

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QUESTION: I am helping my 99-year-old Grandmother file an I-90 to renew her green card. She is vision and hearing impaired and cannot speak, read or write in English. Also, she is physically limited and bedridden. With these conditions, would USCIS accept her application where her signature was just a mark on the signature box. If I signed as her preparer, would that be sufficient? Once her interview is scheduled, since she is physically bed ridden, are there other ways to help her get through her interview process or is there a way she does not have to go for an interview?

ANSWER: Except as explained below, applicants must sign their application forms. Any person who helps complete the form for an applicant should sign the form’s Declaration of Person Preparing Application. But the applicant still needs to sign the form as well. A signature does not have to be legible, in English, or contain the applicant’s full name. Where the applicant is incapable of signing their name, the applicant should be able to put down the mark that they normally use in lieu of a full signature.

However, a parent or legal guardian can sign for a child who is under the age of 14.

Also, a legal guardian can sign on behalf of an incapacitated adult. To be considered a legal guardian of an incapacitated adult, the person must have authority to sign as legal guardian on behalf of the incapacitated adult, either through a court appointment or through the execution of durable Power of Attorney or similar legally binding document. In such situations, a copy of the court order or Power of Attorney and evidence of the incapacitating disability, such as a letter from the person’s doctor, must accompany the form.

Form I-90 applications do not require an interview. However, they do require USCIS be able to acquire the person’s biometrics (fingerprints and photograph). This is usually done by scheduling an appointment for the applicant to appear at a USCIS Application Support Center. Where an incapacitated applicant is unable to appear for an interview or a biometrics appointment, evidence should be provided of the applicant’s inability to appear due to a physical, medical, or mental disability. In such situations, USCIS will either make necessary accommodations to allow the applicant to appear for an interview or biometrics appointment, waive the interview, arrange to send someone to the applicant’s residence to interview or collect biometrics, and/or arrange for the legal guardian or attorney to have the applicant’s biometrics collected and submitted to USCIS.

Also, currently the I-90 can be filed on-line on the USCIS website. But the application must still be submitted by the applicant, an authorized attorney, or a legal guardian (as described above).

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