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Children in Immigration

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You are a U.S. citizen and you want to apply to adjust the status of your non-US citizen child.  In immigration law a “child” may be defined differently than what we would normally think of as a child. The Immigration and Nationality Act (INA) defines “child” for us. 

INA 101(b) defines a “child” as an unmarried person under 21.  If the person is over age 21 then s/he is referred to as the “unmarried son or daughter over 21.”

The INA does not distinguish between “legitimated” and “unlegitimated” children. However, children born “out of wedlock” are treated differently than children born “in wedlock.” A parent can go through the legal process to have the child legitimated but it must be completed before the child turns 18 years old.

For a stepchild to qualify for an adjustment of status based on a family relationship, the parents must have married before the child turned 18.  Nevertheless,  the stepchild-stepparent relationship continues even if the natural parent dies.

An adopted child must have been adopted before age 16.  The parent must have had legal custody of the adopted child for at least two years. When dealing with an adopted child, the attorney must delve into the adoption thoroughly. Once a child has been adopted, the biological parents cannot get an immigration benefit for that child.


Spouses in Immigration

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The  Immigration and Nationality Act (INA) does not define “spouse.”  However, the marriage must be valid where the couple got married, and also where the couple resides. Thus if the couple marries in New York but resides in Alabama. The marriage must be recognized as valid in both states.

The government does not favor a “sham marriage.”  A sham marriage is one that is valid, but the married couple does not intend to live together.  Thus a “sham marriage” is one where the couple marries simply for immigration purposes.

Same-sex marriage is acceptable, if it is a valid marriage. The marriage must have been valid when the couple married. The validity of the marriage is determined “where the marriage is celebrated.” Look at the state law or the country where the couple married.

When it comes to having more than one wife, only the first marriage counts for immigration purposes. Polygamy is not accepted as a valid marriage in the United States.

Incestuous marriages may be valid if the marriage was valid where the couple married.

“Common law marriage” is where the couple lives together with the intent to be married. Very few states in the United States still recognizes common-law marriages. However, these may be acceptable as long as you can prove the required elements for a common law marriage.

Couples married less than 2 years  when applying for adjusted status are granted  only “conditional residential status.” Physical-presence in the United States is required. The contracting parties must be present in order to have a valid marriage. After the two-year period is up the couple must petition to have the condition removed.

INA § 237(a)(1)(g) if residence is sought less than two years after the marriage, or the marriage was terminated, withing 2 years of beneficiary obtaining residence. After the 2 years conditional residence is over the couple has to file a joint petition to have the condition removed. If the couple is no longer married there is a waiver for the joint filing requirement. When filing joint petition or a waiver you have to show the marriage was entered into with good faith. The petitioner and the beneficiary have to prove the good faith.

All prior marriages must be terminated. The divorce must be valid where obtained. It also has to be accepted where the subsequent marriage took place.

Where marriage is terminated by death there is provision in INA 204(l) that may continue the validity of the marriage. There is also humanitarian relief for widows and widowers.

Battered spouses are not defined in the INA but the Violence Against Women Act (VAWA) allows a spouse of U.S. citizens and a lawful permanent resident (LPR) to apply for immigration benefits. Thus if the beneficiary was abused physically or emotionally s/he can apply without the abuser’s consent or knowledge.

Immigration for the Family

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Family Immigration

“Tribulation worketh patience.” Romans 5:3 Family Immigration petitions require patience or maybe tribulation. They can take a lon-n-n-ng time.

In addition to understanding the family immigration process, it is necessary to understand other areas of immigration as well. This helps you to know the what other options may be available.

Some family members may not qualify for a green card.  In addition, processing times can be much longer than expected. Understanding the timeline requires a careful review of the processing charts over time, to detect patterns in the chart. Thus reviewing only the most recent chart is not adequate to detect the patterns.

Also the immigration attorney must ask very personal questions before preparing an immigration petition. The questions may be embarrassing, but it is necessary to get all the pertinent information up front.

For an attorney representing more than one person in the same case there may be ethical issues. For example, if Juan marries Anita, then wants to file a petition for Anita to adjust her status. The problem arises when Anita and Juan get a divorce. Does the attorney represent Anita or Juan. Well maybe neither if the attorney has to withdraw because a conflict of interest has arisen.

There are four types of family members that may want to petition for a status adjustment via the Immigration and Nationality Act (INA):  (1) spouse (2) child (3) sibling and (4) parent. Each of this is discussed in other blog posts. Children Immigration