Immigrant Visa  (Visa Petition)

A visa petition is the first step toward obtaining lawful Permanent Residence  status for a foreign born individual or family member. It is usually filed by a United States citizen, Lawful Permanent Resident, or  an Employer. Visa petitions are adjudicated by citizenship and Immigration services (USCIS). A visa Petition Application may be based on an Employment relationship or Family relationship.

There are numerical limitation on the number of visas availability for certain classes of Immigrants due to the fact that more people each year wants to immigrate to the United States than there are visas available. The result of this is a visa backlog with a waiting list.
    
Visa Petition Categories with Numerical limitation include:

Family sponsored Immigrant visa petitions are valid indefinitely until they are used as a vehicle for Immigrant visa at the consular post or Embassy or Adjustment of status if in the Foreign Alien is in the united States or until they are revoked.

Pursuant to the provisions of section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313,an approved  Employment based Immigrant  Visa Petition shall remain valid when an alien changes jobs, if:

• A Form I-485, Application to Adjust Status, on the basis of the Employment Base immigrant petition has been filed and remained unadjudicated for 180 days or more; and
   
• The new job is in the same or in similar occupational classification as the offer of employment for which the Visa petition application was filed.
  

Accordingly, if the Employer withdraws the approved Form I-140 Employment based Visa Petition on or after the date that the Form I-485 Application for Adjustment of Status  has been pending 180 days, the approved Form I-140 Employment Based Visa Petition shall remain valid under the provisions of §106(c) of AC21.

If approval of the Form I-140 Employment based Visa Petition  is revoked or withdrawn before the alien’s Form I-485  Application for Adjustment of Status has been pending  for 180 days, the approved Form I-140 Employment based Visa Petition will no longer be valid with respect to a new offer of employment and the Form I-485

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Immigrant Visa Petition Revocation

Automatic Revocation

In Family based Visa Petitions, a Visa Petition filed by a family member or relative  may be automatically revoked if :

• The petitioner withdraws the petition,
•  If the petitioner or beneficiary dies,
• Upon legal termination of the marriage upon which the petition was based,
• Upon the marriage of a second preference unmarried son or daughter, or
• Upon the termination of status of a lawful permanent resident petitioner (unless he or she becomes a U.S. citizen).

There are other provisions for revocation which allow for automatic conversion to a different Visa classification. 

In the case of the death of the petitioner, USCIS may choose not to revoke the petition for humanitarian reasons.

An employment based Visa petition may be automatically revoked if:

The Department of State may also terminate the registration of any alien who does not apply for an immigrant visa within one year of being notified of the availability of the visa. This provision is found in Section 203(g) of the Immigration and Nationality Act.

Immigrant Visa Petition Withdrawal 

A petitioner may withdraw an Immigrant Visa petition or application prior to adjudication. Withdrawal is a voluntary action. It should not be coerced,.Although a withdrawal by a petitioner is not necessarily an indication of fraud, the facts surrounding any prior withdrawal will be considered in the event a subsequent petition is filed by the same petitioner.  A petition which has been withdrawn cannot be denied. 

 An Approved Family sponsored Immigrant visa petition is a basic requirement of the Immigration and Nationality Act in order to qualify  for Adjustment of status to that of a Lawful Permanent Resident  of the United States.

The beneficiary of such family sponsored Immigrant Visa Petition must be  eligible for the classification sought.

A beneficiary will be eligible for a  family sponsored Immigrant visa petition based on :

• Being an Immediate relative of a United States Citizen.(Immediate relatives are spouses, parents and Minor Child under 21 years of age of United States Citizen) these persons are not subject to any numerical limitation .
• Belonging to a  preference classifications or category such as:

1.  First preference Category which includes the unmarried sons and daughters of United States citizens who are above 21 years of age.
2.  Second preference which  includes the spouses, children, and unmarried sons and daughters of Lawful Permanent Resident Aliens.
3. Third preference which includes the married sons and daughters of United States Citizens.
4.  Fourth preference which  includes the brothers and sisters of United States citizens.
   
   The Petition for Alien Relative is filed with USCIS by a United States citizen or lawful permanent resident on behalf of an alien relative to establish eligibility for the exemption or preference.

Beneficiaries belonging to a Preference classification or Categories need to have a current  priority date for Immigrant visa issuance or Adjustment of Status.The Priority date is generally established when the immigrant Visa Petition is properly filed and accepted by United states Citizenship and Immigration services.(USCIS). The priority date is the chronological date which establishes the preference beneficiary alien's place on a waiting list maintained by the Department of State for issuance of the immigrant visa numbers.

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Immigrant Visa Petition For a Spouse

An Immigrant Visa Petition for a spouse may be filed by a United States Citizen or a Lawful Permanent Resident of the united States.

Where the beneficiary spouse is not subject to the numerical limitation or has a visa number available, a one step application process may be filed concurrently to include the Family based Immigrant Visa Petition and Adjustment of status at the same time if all the necessary provisions of the law are met.

Some  restrictions and limitation to Concurrently filing of an Immigrant Visa with an Adjustment of status Application Include:

1. Where  the beneficiary of the family based Immigrant Visa I-130 is subject to section 212(e) of the Immigration and Nationality Act as an exchange visitor who has neither complied with nor obtained a waiver of the 2-year foreign residency requirement, an I-485 Application for Adjustment cannot be filed concurrently with the  I-130 Immigrant Visa Petition.In such a case  the I-130 Immigrant Visa Application has to be filed alone .at the appropriate service center.
2. Where  the petitioner is a Lawful Permanent Resident and second preference visa numbers are not current or available,beneficiary cannot filed an adjustment of status application concurrently.The I-130 Immigrant Visa will have to be filed alone.
3. Where  the beneficiary entered the United States  on a K-1 visa and the I-130 Immigrant Visa  petitioner is not the same person who filed the K-1 Visa Application ,the beneficiary cannot file an Adjustment of status concurrently ,The I-130 immigrant Visa Petition will have to be filed alone.

Documentation has to be submitted to establish

• The  legal standing of the petitioner (Evidence of U.S. citizenship or Lawful permanent Residence status)
• The Validity of the relationship (Evidence of the lawful marriage of the petitioner and beneficiary and of the termination of any and all prior marriages of both parties).

The validity of a marriage is judged by the law of the place of celebration.  However, if a marriage is valid in the country where celebrated but considered offensive to public policy of the United States, it will not be recognized as valid for immigration purposes.

Where there is evidence that the beneficiary and Petitioner  attempted or conspired to enter into a Sham marriage for the purpose of evading the immigration laws(i.e for the sole purpose of enabling the foreign alien obtain a green card) the immigrant Visa petition will be denied and this may lead to a finding of  marriage fraud.

Sham Marriage is marriage entered into for the purpose of obtaining immigration benefits. Such marriage does not confer any immigration benefits.  United  States Citizenship and Immigration Service (USCIS) investigate claimed relationships and verify the validity of documents. USCIS seeks criminal prosecutions when family relationships are falsified to obtain an Immigration benefit such as visa or green card.

A person may be imprisoned for up to five years or fined $250,000, or both, for entering into a marriage contract for the purpose of evading any provision of the immigration laws. In addition, a person may be fined up to $10,000 and imprisoned for up to five years, or both, for knowingly and willfully falsifying or concealing a material fact or using any false document in submitting an Immigrant Visa  petition.

A finding of marriage fraud will prevent the foreign alien from obtaining any immigration benefit in the future

The Bona fide of the marriage relationship has to be established by the Petitioner and beneficiary.

 A number of factors may raise questions about the intent of the marriage, and therefore necessitate some investigation by United States Citizenship and Immigration Services..Some indications that a marriage may have been contracted solely for immigration benefits may include  

• Large disparity of age;
•  Inability of petitioner and beneficiary to speak each other's language;
•  Vast difference in cultural and ethnic background;
•  Family and/or friends unaware of the marriage;
•  Marriage arranged by a third party;
•  Marriage contracted immediately following the beneficiary's apprehension or receipt of notification to depart the United States;
•  Discrepancies in statements on questions for which a husband and wife should have common knowledge;
•  No cohabitation since marriage;
•  Beneficiary is a friend of the family;
•  Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.  

 A sham marriage has been defined  as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or "good faith", to live together and which is designed solely to circumvent the immigrations laws. Sham marriages are not recognized for immigration purposes.

Whether an alleged marriage is valid for purposes of immigration is a question of Federal law not of State law. Federal law has defined  the word ‘marriage’ to means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife. For a relationship to qualify as a marriage for purposes of Immigration Law  one partner must be a man and the other a woman. 

 In an effort to deter immigration-related marriage fraud, there are Criminal penalties imposed on  individuals who are convicted of having engaged in a fraudulent marriage.

An alien’s Lawful Permanent Residence  Status is “conditional” if the qualifying marriage occurred less than two years prior to the alien’s immigration or adjustment. The conditional resident alien is required to seek removal of the conditional basis of the residence shortly before the second anniversary of the date on which he or she immigrated or adjusted.

The law generally prohibits the approval of an Immigrant  Visa petition filed by a Lawful Permanent Resident for a spouse within five years of the date on which the petitioner became a Lawful Permanent Resident if that Lawful Permanent Resident  obtained his or her Lawful Permanent Residence status through a prior marriage. The Lawful Permanent Resident  can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death.

There is a prohibition against approval of an Immigrant Visa petition filed on behalf of an alien by a United States citizen or a Lawful Permanent Resident spouse if the marriage creating the relationship occurred on or after November 10, 1986, and was contracted while the alien was in exclusion, deportation, or removal proceedings. The petitioner can request an exemption from the above prohibition if he or she Is able to establish through clear and convincing evidence that:

• The marriage was entered into in good faith; and
• The marriage was not entered into for the purpose of obtaining Lawful Permanent Resident status for the beneficiary; or
• The alien beneficiary has resided outside the United States for at least two years after the date of the marriage.
                                                                                                                                                         

Immigrant Visa Petition for a Child,Son or Daughter of a United States Citizen or Lawful Permanent Resident

An Immigrant  visa petition may be filed on behalf of a child by either a United States Citizen Parent or a Lawful Permanent Resident Parent . A  United States citizen and in certain circumstances a Lawful Permanent Resident, may file an Immigrant Visa Petition on behalf of a son or daughter. A United states Citizen may also Immigrant Visa Petition for an orphan,  a Lawful Permanent Resident may not.

Basic factors taken into Consideration

•  The petitioner’s status,
• The beneficiary’s age,
• The beneficiary’s marital status, and
• The relationship between the petitioner and the beneficiary.

 The petitioner may be a citizen of the U.S. or a lawful permanent resident of the the United states to qualify as a Petitioner.

 The age of the beneficiary affects the classification under which a petition may be approved. If

• under age 21 and unmarried,  beneficiary is considered to be a child.
•  21 years or older or if married,  beneficiary is considered a son or daughter.

 Marital Status of Beneficiary  can affect the classification under which the petition is approved; In the case of a petition filed by a Lawful Permanent Resident, it makes the difference between an approval and a denial:

PETITIONER	MARITAL STATUS AND AGE OF THE BENEFICIARY	RESULT
United States Citizen	Unmarried and under age 21	Immediate Relative
United States Citizen	Unmarried and 21 or older	1 st Family Preference
United States Citizen	Married (any age)	3 rd Family Preference
Lawful Permanent Resident	Unmarried and under age 21	2a Family Preference*
Lawful Permanent Resident	Unmarried and 21 or older	2b Family Preference*
Lawful Permanent Resident	Married (any age)	Not eligible

Relationship Between Petitioner and Beneficiary .

In some situation the nature of the relationship (e.g., legitimate Child, illegitimate Child, adopted Child ,Step Child) is important as well as  the point at which the relationship existed

Immigrant Visa Petition for Child Born in Wedlock (Also  Referred to as “Legitimate Child”) .

The phrase born in wedlock” refers to Children whose parents were married at the time of their birth.This also  includes Children born to a couple in a “common law” marriage, if the common law marriage is recognized by the State or foreign country in which the couple resides.

Immigrant Visa Petition for a Step Child : 

A Step Parent qualifies as a Petitioner where a step relationship exist.A Step Child Relationship is created for Immigration law Purpose whenever a natural  parent of the Child marries someone else  (other than the Child’s other natural  parent) before the Child’s 18th birthday. The relationship is created automatically as a result of the marriage, assuming that the marriage is not a sham .

Normally ,a  Step  Child Relationship terminates when a marriage ends, especially if it ends in divorce.  However, under certain circumstances a step Child relationship may continue after the death of the natural parent or even after the legal separation or divorce of the step Parent and natural Parent if there is an ongoing relationship between the Step Parent and Step Child. Where the Marriage ends in annulment the step relationship is deemed to have never existed because legally the marriage never existed.

The creation of a step relationship in no way terminates the relationship between the Child and his or her other natural parent .A  Child who acquired Lawful Permanent Resident  status through a stepparent may  later petition for the other natural parent once the Child naturalizes and reaches the age of 21.

Immigrant Visa Petition for a Child Adopted While Under the Age of 16 .

An adoptive parents qualifies as a Petitioner and can file a family based Immigrant Visa petition on behalf of  a Child adopted while under the age of sixteen years if the Child has been in the legal custody of and has resided with, the adopting parent or parents for at least two years.

No natural parent of any such adopted Child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under the Immigration and Nationality Act since  their natural relationship was severed through the  adoption.

Foreign Aliens who gain Legal Permanent status in the U.S. through adoptive parents are not eligible to pass any  Immigration benefits to their natural parents.

such Child is prohibited from petitioning for his or her natural parent(s), since the relationship between the Child and the natural parent(s) was severed at the time of the adoption.

Immigrant Visa Petition for a Parent

Only a Citizen of the United States qualifies as a Petitioner  and may file an Immigrant  visa petition for a parent.  The petitioner must be at least 21 years old at the time of filing. In order for the beneficiary to be considered the parent of the petitioner:

•  The petitioner must have once qualified as the Child of the beneficiary.; and
•  The relationship must continue to exist, even though the petitioner is over age 21 and, therefor, no longer a Child.

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The requirements for establishing the parent-child relationship are the same as with petitions for children, In addition to evidence of U.S. citizenship , the petitioner must also provide evidence of the claimed relationship.

Immigrant Visa Petitions for More than Two Parents.

Immigrant Visa Petition for a Sibling.

Only a U.S. citizen who is 21 years of age or older may file a petition for a brother or sister for classification. It must be established that the petitioner and beneficiary are or once were “children of a common parent" . A consanguineous (i.e., blood) relationship between the petitioner and the beneficiary is not required .

The parent-child relationships can be established through any of the means recognized in the definition of child contained in the immigration and Nationality Act. (i.e., through birth, through adoption, or through a marriage creating a step relationship). As in the case of a stepparent-stepchild relationship, a step sibling relationship is normally dissolved should the marriage of the parent and stepparent end in divorce or annulment .The adjudication of a petition for a sibling is more like an adjudication of two separate relationships:

1.The relationship between the petitioner and his/her parent, and

2.The relationship between the beneficiary and that same parent. The documentation required to establish a sibling relationship varies and depends entirely on the parental combination through which the relationship occurs. 

Eligibility for relative classification as a brother or sister depends upon the petitioner establishing that both petitioner and beneficiary were "children" of a common parent. This relationship is usually established through the submission of the birth certificates of the petitioner and beneficiary, as well as evidence of the relationship between their parents, where appropriate. 

  In order to qualify as step siblings, either

(1) the marriage which created the step-relationships must continue to exist, or

(2) where parties to that marriage have legally separated or the marriage also terminated by death or divorce, a family relationship must continue to exist as a matter of fact between the "step siblings".
 An adopted child may not confer immigration benefits upon his or her natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.

Link to 

Form I-130 :Petition for Alien Relative

Form I-140 : Immigrant Petition for Alien Worker

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