mmediate relatives (IR) include children, spouses and parents of US citizens. If a US citizen applies for a parent, he/she must be over 21. If a US citizen (USC) applies for a child, the child must be under 21 and unmarried. If the child is over 21, he/she is not an IR but would be eligible under the quota, namely under the first preference category for an over 21 year old child but unmarried; or for a married child over 21, then under the 3rd preference category, family based preference.
A widow(er) of a USC can still obtain permanent residence if applied for within 2 years of the USC’s death. There is no longer a requirement that the couple be married for at least 2 years, but it would be denied if the widow(er) had remarried or been separated before the death at the time of the application. The children of the widow(er) may be included in the application for permanent residence.
VAWA CASES (Abused Spouses)
For abused victims of spouses of US citizens, evidence that may be presented include reports from the police, medical personnel, social workers, school and clergy. An order of protection against the abuser, flight to a women’s shelter, consultations with a psycho analyst, photos of visible injuries or hospital reports are all evidence. This evidence can lead to Vawa relief that can provide permanent residence to these abused immigrants.
Besides parents, children and spouses, siblings (brothers and sisters) are also family members as maybe step children, illegitimate children, adopted children and orphans.
Step children include those whose relations between step parents and step child were formed before the child reaches 18. A step parent relationship may continue even despite a divorce if the step parent relation continues after the divorce.
OUT OF WEDLOCK CHILDREN
A natural father who has a child born out of wedlock may apply for the child before the child reaches the age of 21 and provided he/she is not married maybe petitioned for by the natural father. A father may also legitimate a child to prevent a distinction between a legitimate child and illegitimate child provided that the father legitimated the child before age 18. For legitimization it must be shown that the legitimization was pursuant to the laws of the father’s domicile and the child was under 18 at the time of legitimization.
The child must be adopted under the age of 16 and has been under the legal custody of the parent(s) for at least 2 years and residing with the parent(s) for 2 years. The 2 years residency with the child may occur before or after legal custody or adoption. The legal custody is necessary even if the child has not yet been adopted. If the adoption does not occur before the age of 16 the child’s residency it cannot be retroactively granted. A family that adopts a child under 16 may also adopt his or her sibling if the sibling is under 18 at the time of his/ her adoption.
Orphans have no 2 year legal custody residence requirement. The orphan must be under the age of 16 and be an orphan by reason of death, abandonment, disappearance and/or desertion or loss of both parents. If there is only one parent, the one parent must be incapable of providing proper care and irrevocably in writing has released the child. If the child is born out of wedlock and if the father has had a relationship with the child, the child would not be designated an orphan unless the father has disappeared, abandoned or deserted the child. An adoption requires a husband and wife or if by a single parent, the parent must be at least 25 years of age.
The Immigration Service must satisfy itself that the child will be properly cared for and that the parents economic capacities are sufficient and that there is no indication of substance, sexual abuse or domestic violence by the adopting parents. Now adoption by homosexuals is permitted.
US brothers and sisters may petition for their siblings even if they are related through only one parent. For immigration purposes a brother or sister must be from the same birth family, and not through adoption.
SUBSEQUENT MARRIAGES FOR PERMANENT RESIDENCE
If a permanent resident obtained residence through marriage to a US citizen or to a permanent resident, the permanent resident may not obtain a 2nd preference spousal approval for 5 years from the date the permanent resident became a permanent resident. For an exception, the permanent resident may prove by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws or it was terminated by the death of the former spouse.