Askvisalaw.com

Posted on: October 3rd, 2017
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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 wait that is required, 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, and some 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. So those parents who come to the US to obtain US Permanent Residence and then move back to their home country, so that they are primarily living in their home country, to await a visa for their child or spouse risk the possibility that the US government could determine that they have failed to maintain the US as their permanent residence, and therefore have abandoned their US Permanent Residence.

In a similar situation, in order for a US citizen to be able to petition for a step-parent, the marriage between the parent and step-parent must have taken place before the US citizen’s 18th birthday. So where the parent has remarried and has a spouse that is the US citizen’s step-parent, but where the marriage took place after the US citizen’s 18th birthday, in that situation the US citizen can petition for their biological parent, but they cannot petition for their step-parent, and the step-parent cannot come to the US as a permanent resident with his/her spouse.

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Attorney Ari Sauer explains how Dreamers are affected by the Trump administration’s plan to terminate DACA

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