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Legal Lines: Family and Permanent U.S. Residency

Question:

I have family in the United Sates. Can I become a permanent resident?

Answer:

Family members with U.S. immigration status may petition for your immigration status. There are many different ways that a family member can help you depending on their status and your personal circumstances. 

Citizens can petition for their spouse, children, parents (provided that the citizen is at least 21 years old) or siblings.

Residents can petition for their spouse, minor unmarried children or adult unmarried children, but cannot petition for their parents, siblings or adult married children.

To start the process, your relative will need to submit a form I-130 Petition for Alien Relative to U.S. Citizenship & Immigration Services, to prove your qualifying family relationship. Usually, an immigration officer will interview you and your relative before adjudicating the petition. Sometimes, an immigration fraud officer will investigate your relationship with your relative if fraud is suspected. If your relative is abusive, you may petition for your own status without your relative participating in the process. Petitions based on abuse are filed on form I-360 Petition for Amerasian, Widow(er), or Special Immigrant. These petitions are confidential, meaning that you need not tell your relative about the petition and immigration will not release any information on your case to the public.

The second step involves filing your permanent visa application. When you can apply for a permanent resident visa depends on the type of relationship you have with your relative and the immigration status of your relative. Spouses, minor children and parents of U.S. citizens are not subject to the visa quota system, and a visa is always available. If you are living in the United States you may be eligible to submit your residence application on the form I-485 Application to Adjust Status together with the I-130 Petition for Alien Relative.  If you are not eligible to file an I-485 or are not located in the United States, then you must proceed with the visa application process through the U.S. embassy in your home country or last place of residence abroad.

Adult children and siblings of citizens, as well as relatives of permanent residents, are subject to the quota system, which limits visa availability. The Department of State publishes visa availability in its “Visa Bulletin,” which is available at travel.state.gov/visa/bulletin/bulletin_1360.html. If you are subject to the quota system, you must wait for a visa to be available before you can apply for your visa.

Be very careful about applying for permanent residence. If you are not eligible for the visa due to health, financial, immigration violations or criminal issues, the government can deny your application and begin legal proceedings to deport you.

If you are in removal or deportation proceedings, you may qualify for permanent residence in front of a judge based on Cancellation of Removal. There are two types of Cancellation of Removal defenses for those who are not permanent residents. Each requires that you prove different elements in order to qualify.  You can apply for Non-Permanent Resident Cancellation of Removal if you: have been the United States for 10 years prior to being put in removal proceedings; have good moral character; do not have convictions for certain crimes; and have a citizen or permanent resident spouse, parent or child that would face exceptional and extremely unusual hardship if you were deported.

If you or your children have been abused by a spouse or parent with citizenship or residence you may apply for VAWA Cancellation of Removal. For VAWA Cancellation you must prove that you have been in the United States for three years; that you have good moral character; that you do not have disqualifying immigration or criminal violations; and that your deportation would result in extreme hardship to you, your children or your parents.

Immigration law is very complex and applications can lead to drastic and unexpected outcomes.  Please consult an attorney for individualized legal advice prior to submitting applications.

The Colorado Bar Association welcomes your questions on subjects of general interest. The column is meant to be used as general information. Consult your own attorney for specifics. Send questions to CBA attn: Sara Crocker, 1900 Grant St., Suite 900, Denver, CO 80203 or e-mail scrocker@cobar.org.

About Legal Lines

Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions that are of interest to members of the public for their general information.