Immigrant Visas

27/06/2013 by tamar

family outside museumImmigrant Visas for the Families of United States Citizens and Legal Permanent Residents

The subject of Immigrant Visas for the families of United States Citizens (USC) and Legal Permanent Residents (LPR) of the United States, reigns supreme among the hottest Immigration issues, both with regard to Constitutional Law and Human Rights.

Just about anyone will tell you that he or she sees the issue of Family Unification as an Absolute Right.  But, is this really the case?

Immigration Laws in the United States bear witness to the undisputed value of Family Unification.  However, the law differentiates between categories of Immediate Relatives of USCs (Spouse, Children under the age of 21, and Parents) and other categories of Family Unification:  Unmarried Children over the age of 21 of USCs, Married Children of USCs, Siblings of USCs, Spouses and Children under 21 of LPRs and Unmarried Children over the age of 21 of LPRs.

In the first category, there are no quotas and the visa category is open to any USC who wished to petition on behalf of a Spouse, Child/ren under the age of 21, and/or a Parent including Step-Parents and Step-Children under certain conditions.  There is no waiting period other than the time it takes to finish the administrative processing.

On the other hand, there are quotas in all of the other categories and once the annual quota is filled the oversubscribed petitions spill over to the next year (and so forth and so on) causing ever-increasing waiting lists that manifest into years of waiting in these categories before the Petitioners and Beneficiaries.can be reunited.  The waiting period can be as long as 12 years, depending on the category.

While the Beneficiary is waiting for his or her visa number to come up, he or she may enter the United States freely on any other appropriate visa.  But the entry, length and purpose of their visit must coincide with the visa type upon entry.  The fact that a Petition is pending Approval with United States Citizenship and Immigration Services (USCIS), does not confer any right to remain or work in the U.S. and the intending immigrant may only enter and remain in the U.S. if, as stated above, if he or she does so with an appropriate Temporary Visa.

It is worthy of note that even if an Immigrant Visa Petition is Approved by USCIS, there is no guarantee that the Intending Immigrant Beneficiary will be eligible for an Immigrant Visa to enter the United States.  At the time of the Beneficiary’s Immigrant Visa Interview at a U.S. Consulate abroad, or at the time of adjudication of an Application to Adjust Status inside the United States, the past character of the Beneficiary will be scrutinized.  If the intending immigrant has a criminal record or if he or she has violated the terms of an entry permit on a previous visit to the U.S., the intending immigrant may be deemed inadmissible or ineligible for entry into the U.S without first obtaining a Waiver from the USCIS.

It is not easy to obtain a Waiver under the circumstances described above – and a Waiver will only be approved for those who can demonstrate that Extreme Hardship will be caused to the USC qualifying relative, if the Waiver request is Denied.  Needless, to say that mere separation from the qualifying relative will not demonstrate Extreme Hardship since ever Waiver Applicant has this very same argument.  The test for Extreme Hardship is generally determined by USCIS discretion and based primarily on case-law.

For further information regarding Family-Based Immigration, Greencards,Marriage Visas, Fiance Visas and Waiver visit these topics on our site. or contact us.

 

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