United States: The process for obtaining permanent residency status in the United States (US) by marriage or family reunification; whether one needs to leave the US to complete the process, and if so, whether a sojourn in a third country is sufficient (2005-2008)

Overview

Citizens and lawful permanent residents of the United States (US) must undertake a three-step process to sponsor their relatives to immigrate to the US (US n.d.a). First, a US citizen or permanent resident must file an immigrant visa petition (1-130 Petition for Alien Relative) on behalf of the relative who wishes to immigrate (US n.d.b). The sponsor must prove the relationship with the prospective immigrant (ibid.). The sponsor must also prove that he or she is a citizen or lawful resident and can support the relative at 125 percent above the poverty line (ibid.). The US Citizenship and Immigration Services (USCIS) website provides the following information with respect to which relatives may be sponsored:

* If the sponsor is a U.S. Citizen, they may petition for the following foreign national relatives to immigrate to the U.S.:

– Husband or wife

– Unmarried child under 21 years of age

– Unmarried son or daughter over 21

– Married son or daughter of any age

– Brother or sister, if the sponsor is at least 21 years old, or

– Parent, if the sponsor is at least 21 years old.

* If the sponsor is a lawful permanent resident, they may petition for the following foreign national relatives to immigrate to the U.S.:

– Husband or wife, or

– Unmarried son or daughter of any age.

In any case, the sponsor must be able to provide proof of the relationship. (US n.d.b, emphasis in original)

If the immigrant visa petition is approved by USCIS, the Department of State must then determine whether an immigrant visa number is available to the prospective immigrant (ibid. n.d.b). This is the second step in the immigration process (ibid. n.d.a). When a number becomes available, the prospective immigrant must secure the number either by applying to change his or her status (if he or she is already in the US) or by going to a US consulate outside the US (US n.d.b). This is the third step in the immigration process (US n.d.a).

Those who have been convicted of a criminal offence, who are considered threats to national security or who are in ill health, especially those carrying communicable disease, will not be accepted as lawful permanent residents (ALCC n.d.).

Immediate relatives

According to the USCIS website,

[t]he immediate relatives of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by USCIS. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens.... (US n.d.a, emphasis in original)

In an interview conducted by the Research Directorate, an immigration lawyer based in Washington, DC who works for a private firm stated that immediate relatives who entered the US legally would not have to leave the country to finalize the immigration process, even if staying means that the non-immigrant visa they used to enter the US expires (24 Jan. 2008). A program manager in a state refugee office explained the process for immediate relatives to adjust their status to legal permanent resident in 23 January 2008 correspondence with the Research Directorate as follows:

If a [foreign national] is legally present in the U.S. on a NON-immigrant visa, such as a tourist visa, they can file to adjust status to legal permanent resident only under very limited conditions. To be eligible to adjust status they must be the immediate relative (spouse or parent or minor child) of a U.S. citizen. (Program Manager 23 Jan. 2008)

The Program Manager also said that the administration of these applications to adjust status is slow (ibid.). She added that

[s]ince visitor's visas are extremely time limited – usually to one month but occasionally to three months – it would be extremely rare if not impossible for the [foreign national] to receive an approval notice and visa within the time validity of their non-immigrant tourist or visitor's visa. (ibid.)

However, the Immigration Lawyer stated that if the prospective immigrants are immediate relatives of a US citizen, the fact that they have overstayed their visa will not be a problem (24 Jan. 2008). They will be able to stay in the US to finalize their application to adjust their status (Immigration Lawyer 24 Jan. 2008).

If the prospective immigrant entered the US illegally, he or she may not be eligible to become a lawful permanent resident, even if the prospective immigrant would otherwise qualify (ALCC n.d.).

There is an exemption available under Immigration and Nationality Act (INA) 245(i) exclusively for prospective immigrants who were physically present in the US on 21 December 2000 and whose relatives filed an immigration application on their behalf before 30 April 2001 (US 1952; Immigration Lawyer 24 Jan. 2008). Such people may be eligible to adjust status and become lawful permanent residents, even if they had entered illegally (ibid.).

Other prospective immigrants

The USCIS website states that prospective immigrants who are not immediate relatives of US citizens must wait for an immigrant visa number to become available based on the following preferences:

– First preference: unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.

– Second preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.

– Third preference: Married sons and daughters of U.S. Citizens.

– Fourth preference: Brothers and sisters of adult U.S. Citizens. (US n.d.b)

There are a limited number of visa numbers available each year, and in some cases it can take "several years" to obtain a number, according to USCIS (US n.d.a). Wait times are longer for prospective immigrants who come from a country where high numbers of people are applying to immigrate (ibid.). A document produced by the League of Women Voters (LWV) – a non-partisan political organization seeking to improve governance and influence policy in the US (LWV n.d.) – indicates that the wait time for an immigrant visa under the preference categories can range from "5 to 20 years or more (and longer yet for siblings of U.S. citizens)" (5 Apr. 2007).

According to a second Washington DC-based Immigration Lawyer interviewed by the Research Directorate, prospective immigrants subject to the preference categories cannot live in the US while they are waiting for their immigration number (23 Jan. 2008). This Immigration Lawyer, who works for a charitable organization, stated that a prospective immigrant must leave when his or her temporary visa expires, otherwise he or she will be unlawfully present in the US (23 Jan. 2008).

When an immigrant visa number becomes available, the prospective immigrant can secure it in his or her homeland or in a third country (Immigration Lawyer 24 Jan. 2008). However, if the prospective immigrant has remained unlawfully in the US, the person will face the prospect of being barred from the US when he or she tries to collect the immigrant visa number (Immigration Lawyer 23 Jan. 2008). The Program Manager commented on this situation as follows:

Non-immigrant visa overstayers who have overstayed for between six months and one year, are – once they leave the U.S. to collect their visa at the American Embassy in their homeland or a third country – prohibited from re-entering the U.S. for three years. If the duration of their overstay is more than one year, they are prohibited from re-entering for ten years. In both cases, the visa they have gone to collect is likely to be offered to the next person on the list who has no bar to entry or re-entry. So, in effect, the would-be immigrant is back to square one, and must begin the whole process anew, no matter how many years they had waited for the visa.

...

If the [foreign national] is attempting to collect their visa at the U.S. Embassy in their homeland and is found to be inadmissible, they are simply not re-admitted to the U.S. (neither on an immigrant visa nor a non-immigrant visa). If they have travelled to a third country to attempt to collect that visa, and they are found to be inadmissible to the U.S., it then becomes their problem to either return to their homeland or seek admission to another country. (Program Manager 23 Jan. 2008)

The Immigration Lawyer with the charitable organization corroborated that prospective immigrants who were unlawfully in the US and who travelled to a third country to claim their immigrant visa could be barred from re-entry (24 Jan. 2008).

Waiver of non-admissibility

The Program Manager indicated that a waiver of non-admissibility may "in rare circumstances" be granted by consular officials (23 Jan. 2008). The Immigration Lawyer who works for the private law firm stated that a waiver of non-admissibility could be granted if the applicant can prove that his or her family member will suffer "extreme hardship" without them (Immigration Lawyer 23 Jan. 2008). By way of example, he said if the prospective immigrant had an ill, bedridden relative he or she was nursing, the case would qualify as one involving extreme hardship (ibid.). However, the case of a relative who would suffer emotionally as a result of the prospective immigrant's absence would not fall into the category of extreme hardship (ibid.).

The Program Manager stated that because there is a risk the request for a waiver may be turned down, many prospective immigrants will not attempt to collect their immigrant visa because they do not wish to risk being barred for 3 to 10 years (23 Jan. 2008).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

AIDS Legal Council of Chicago (ALCC). N.d. "Immigration Basics." [Accessed 21 Jan. 2008]

Immigration Lawyer, Washington, DC. 24 January 2008. Telephone interview with a lawyer who works at a private law firm.

Immigration Lawyer, Washington, DC. 23 January 2008. Telephone interview with a lawyer who works with a charitable organization.

League of Women Voters (LWV). 5 April 2007. Patricia Hatch. "U.S. Immigration Policy: Family Reunification." [Accessed 21 Jan. 2008]
_____. N.d. "About the League." [Accessed 21 Jan. 2008]

Program Manager, Baltimore, Maryland Office for New Americans. 23 January 2008. Telephone interview.

United States (US). 1952 (with amendments through November 2007). Immigration and Nationality Act. [Accessed 18 Feb. 2008]
_____. N.d.a. Citizenship and Immigration Services (USCIS). "How Do I Get an Immigrant Visa Number?" [Accessed 16 Jan. 2008]
_____. N.d.b. Citizenship and Immigration Services (USCIS). "Immigration Through a Family Member." [Accessed 14 Dec. 2007]

Additional Sources Consulted

Oral sources: Experts from the Congressional Research Service (CRS), the Institute for Justice and Democracy in Haiti (IJDH), and the Social Science Research Council (SSRC) were unable to provide information within the time constraints of this Response.

Publications including: Journal of American Ethnic History.

Internet sites, including: Baruch College, Center for Immigration Studies (CIS),

Migration Information Source, National Immigration Forum, United States Library of Congress, University of Cincinnati, Voice of America (VOA).