What is an “immediate relative” for immigration purposes?

For my clients that are US citizens,  I have been asked who are “immediate relatives” for immigration purposes and why that is an important classification.

Sec 201 of the INA states that the following immediate relatives can be applied for by a US citizen, without having to wait for a visa number to become available. These “immediate relatives” can be :

1. Spouses of U.S. Citizens;

2. Children under the age of 21 of U.S. Citizens;

3. Parents of US citizens; and

4. Spouses of deceased US citizens that were married at least two years.

By fitting into this category the immediate relative bypasses the wait times for visa’s that would be required.  Please feel free to contact my office if you are a US citizen and wish to apply for an immediate relative.

“Continuous Residency” for US Citizenship

This morning while I was reviewing a client’s passport as to the length of time he had spent abroad , when the issue of “continuous residency” arose as I saw that he had been out of the US for longer than six months during the last five years. He asked what are the consequences of being out of the US for longer than six months as it relates to my N-400 petition for Naturalization?

One of the requirements of obtaining US citizenship is that you have been a permanent resident in the US for five years. If you obtained permanent residence through marriage,  then the time requirement is reduced to three years.

It is important during your term of permanent residence to not be outside of the US for longer than six months at a time. If you stay outside of the US for longer than six months, you may be not just putting your permanent residency at risk, but you are also re-setting the time period for you to be eligible to apply for citizenship. The USCIS deems absences of 6-12 months to create a presumption that you have broken the continuity of residence and may re-set the five or three year continued residency requirement. Over a year outside the US by law will be deemed as having broken the continuity of residency thereby automatically re-setting the five or three year continued residency requirement.



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Considerations Before Applying For US Citizenship

I have clients that have been permanent residents in the U.S. and now want to apply for their naturalization. I always ask them some two very important questions before they apply. These questions are:

1. How did you become a permanent resident? The reason for this questions is to find out if they obtained their residency through marriage or an employer. If it had been through marriage, is the resident still together with the U.S. citizen and if not, why? Remember during an USCIS naturalization interview, if an immigration officer suspected the marriage was for fraudulent purposes, you could wind up in removal. Also, if residency was obtained through an employer, what evidence do you have to show that you were employed for a reasonable amount of time.

2. Have you been arrested or convicted of a crime since obtaining your permanent residency? With the increased attention to residents with criminal convictions, some of those arrests or convictions could classify you as an aggravated felon, or having committed crimes of moral turpitude also subject to removal from the U.S.

If you have any of these issues related to your residency, please contact an immigration lawyer before attempting to file your N-400 for Naturalization. The USCIS does a complete criminal search through all US law enforcement databases and you cannot hide any criminal history from them.

Waivers for Unlawful US Presence

I have already begun receiving calls regarding the announcement on January 6th, regarding the implementation of a new program that will be available to immediate relatives of US citizens that are unlawfully present in the U.S.  Here is a brief synopsis of the program that will be implemented later this year.

First, the program will only be available to immediate relatives of US citizens that are here unlawfully in the U.S. It will encompass both spouses and parents. The program will not be open to immediate relatives of Legal Permanent Residents at this time.

Secondly, you will still have to file and prove to the USCIS , that you as the alien, will suffer “extreme hardship” if you are barred from being with your family member for 3 to 10 years. I recommend not trying to prepare the waiver by yourself, and to only use a skilled immigration attorney to layout the factual and legal basis for your waiver.

Thirdly, if the hardship waiver is granted due to your unlawful presence in the US, you will still have to return to your home country to undergo a formal interview for your visa. At the interview, the consular officer will apply the waiver to your petition, so that you will then admissible to the US. If there are other grounds of inadmissibility, other than unlawful US presence, then additional waivers may be required.

I will update this blog when the finalized version of the program is detailed