Family Immigration

At Chodorow Law Offices, we put families first. Immigration may be mission critical for your family. We understand. We have the legal expertise you need. And we are sensitive to the time pressures you may face.

Highlights

K-1 Fiancé(e) Visa Guide
K-1 Fiancé(e) Visa Guide

This article covers the requirements and procedures to apply for a K-1 visa, as well as the terms and conditions of K-1 status. Also covered are the rules for the fiancé(e)’s unmarried children under age 21 to apply for K-2 visas.

Guide to Form I-751, Petition to Remove Conditions on Residence
Guide to Form I-751, Petition to Remove Conditions on Residence

A spouse who immigrates based on marriage to a U.S. citizen or lawful permanent resident will be granted conditional resident (CR) status if, at the time of admission as an immigrant, the marriage is less than two years old.

Choosing the Best Visa Strategy for a Fiancée or Spouse: K-1, K-3, or CR1/IR1 Immigrant Visa?
Choosing the Best Visa Strategy for a Fiancée or Spouse: K-1, K-3, or CR1/IR1 Immigrant Visa?

A U.S. citizen planning to file a visa petition for a foreign fiancée or spouse who is outside the U.S. may have various strategies to choose from. The most common options are the K-1 fiancée visa, the K-3 visa, and the CR1/IR1 immigrant visa. This article analyzes the factors to be considered in choosing among…

Form I-864, Affidavit of Support: Help Center
Form I-864, Affidavit of Support: Help Center

Welcome to the Affidavit of Support Help Center. If you feel that you need some help with the Form I-864, Affidavit of Support, you are not alone. Technical errors with the Form I-864 are among the most common reasons for denial of permanent residence applications.

Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat
Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat

I’ve been asked several times today about how the spouse of a U.S. citizen expat can apply for a B1/B2 (visitor for business or pleasure) visa. The question typically goes something like this: I am a U.S. citizen. I have lived in China for 5 years. My wife has been denied a U.S. tourist visa…

Guide to Form I-130, Petition for Alien Relative, on Behalf of a Spouse
Guide to Form I-130, Petition for Alien Relative, on Behalf of a Spouse

This Guide is about the Form I-130, Petition for Alien Relative. Such a petition is the first step for a U.S. citizen to sponsor a husband or wife for lawful permanent resident (LPR) status, colloquially known as “green card” status.

Rights and Obligations of Lawful Permanent Residents
Rights and Obligations of Lawful Permanent Residents

This memo summarizes the rights and obligations you have upon becoming a U.S. lawful permanent resident (LPR), also known as a “green card” holder.

Latest on the Trump Administration’s
Public Charge Initiatives

Looking to Sue Over the Public Charge Rule?
Looking to Sue Over the Public Charge Rule?

The Department of Homeland Security’s new public charge rule is subject to challenge in court on multiple grounds. American Immigration Lawyers Association (AILA) is seeking potential plaintiffs for litigation challenging the USCIS Policy Manual as it relates to pubic charge issues. Potential plaintiffs include: Persons with rejected applications, denied applications, or requests for evidence due…

Litigation Update:  Presidential Proclamation Requiring Health Insurance
Litigation Update: Presidential Proclamation Requiring Health Insurance

On Oct. 4, 2019, President Trump issued a proclamation suspending issuance of immigrant visas to applicants who lack either U.S. health insurance or substantial assets to cover their health expenses. For a summary, see our firm’s client alert. On May 4, 2020, the Federal Court of Appeals for the Ninth Circuit refused to stay a…

First Impression: Presidential Proclamation Barring Immigrants Lacking Health Insurance
First Impression: Presidential Proclamation Barring Immigrants Lacking Health Insurance

This is my first impressions of President Trump’s Oct. 4 proclamation barring issuance of immigrant visas to applicants with no “approved” health insurance.

On-the-Ground USCIS and Consular Assistance in China

Did you know? If your relative is in China, we have unparalleled experience and resources on the ground for representing clients before the USCIS offices in China (Beijing and Guangzhou) as well as the U.S. Consulates in China that handle immigrant visas (Guangzhou and Hong Kong). We make it our business to know each consulate’s policies, practices, and procedures.

Introduction to Family Immigration Law

Both U.S. citizens and lawful permanent residents (also known as LPRs or green card holders) can petition for family members to immigrate.

Which Relatives Can Immigrate?

Citizens can petition for the following categories of relatives:

Immediate relativesSpouse or
Unmarried child under age 21
Parent
1st preferenceUnmarried son or daughter over age 21 (and their children)
3rd preferenceMarried son or daughter (and their spouse and children)
4th preferenceSibling (and their spouse and children)

Citizens can also petition for their fiancé(e)s, and certain widow(er)s of citizens are eligible to immigrate.

LPRs can petition for the following categories of relatives:

2A preferenceSpouse
Unmarried child under age 21
2B preferenceUnmarried son or daughter over age 21
Spouses

In order to obtain immigration benefits available to a “spouse”, there must be a valid and subsisting marriage between the parties.

Generally, marriage is valid for immigration purposes if it is recognized by the law of the place where it occurs. This includes same-sex marriages. Marriages that are against public policy, such as polygamous or incestuous marriages, are not valid for immigration purposes even if valid in the place where it occurred. Proxy marriages are not recognized under the Immigration and Nationality Act, unless the marriage has been consummated. A marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. Religious ceremonies alone may not create a binding marriage in some jurisdictions. However, if a religious ceremony alone is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. A marriage ceremony might also be valid for immigration purposes, if the parties entered into it in good faith, believed themselves to be married and lived together as husband and wife.

Moreover, the marriage must be legally subsisting at the time that the immigration benefit is sought. The only exception to this requirement applies to certain widow(er)s of deceased U.S. citizens (discussed below). A marriage can be treated as legally subsisting even though the parties are separated, so long as they are still legally married. The courts have generally rejected the view must be “viable” to support entitlement to immigration benefits. It is now the administrative view that immigration benefits based on marriage may be sought even if the parties are separated, although the separation may be considered in determining whether the marriage was bona fide.

Widow(er)s of U.S. Citizens

A widow(er) of a U.S. citizen may file an immigrant petition under the following circumstances:

  • The widow(er) was married for at least two years to a U.S. citizen. (The deceased spouse need not have been a U.S. citizen for the entire two-year period, so long as he or she was a citizen at the time of death).
  • The petition is filed within two years of the death of the U.S. citizen.
  • The parties were not legally separated at the time of the U.S. citizen’s death.
  • The widow(er) has not remarried.

The widow(er) may include an unmarried, minor child in the petition, or a separate petition may be used.

Children

For the purposes of family-based immigration, a “child” is defined as follows:

  • a child born in wedlock;
  • a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
  • a child legitimated under the law of the child’s residence or domicile, or under the law of father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
  • a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;
  • 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: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or
  • certain orphans: a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a citizen and spouse jointly, or by an unmarried citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child’s proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

The parent-child relationship must continue to exist at the time that immigration process is completed. Accordingly, the child must be unmarried when granted permanent resident status, and the child must be under 21 years of age at that time, with the exceptions described in the Child Status Protection Act.

Parents

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old. “Parent” means a parent who is such by reason of his or her relationship to a “child” within the statutory definition of the term as described above. However, the “child” must have met the statutory definition at the time their relationship was established and the parent-child relationship must continue to exist at the time that the immigration benefit is sought.

Procedures

The immigration process typically starts with the U.S. citizen or LPR filing with U.S. Citizenship and Immigration Services (USCIS) a Form I-130, Petition for Alien Relative. (Battered spouses and children seeking classification as immediate relatives or in the 2A/2B preference categories can file the I-130 without the citizen or LPR’s assistance.) The Form I-130 must be accompanied by proof of the relationship.

There is no quota for immediate relatives to immigrate. But for other preference categories there are quotas, which have led to waiting lists reported in the State Department Visa Bulletin.

For an immediate relative, or for a relative immigrating in another category who is at the front of the waiting list, the next step is to apply for an immigrant visa at a U.S. Embassy or Consulate abroad. In the alternative, a relative physically present in the United States may be eligible to file with USCIS a Form I-485, Application to Adjust Status.

At the immigrant visa or Form I-485 stage, a key issue is whether the relative is ineligible (“inadmissible“) for crimes, immigration violations, health reasons, public charge grounds, etc. Exceptions (“waivers“) are granted in certain cases.

Client Testimonials

Linda is very capable, consistent, understanding, and professional…. We felt very fortunate to have her as our case manager. Thank you for guiding us through this complicated [K-1 visa and Form I-485, Application to Adjust Status] process. We appreciate your diligence and timely response at every step. [We] will surely recommend your firm to anyone we know that is in need.
[Name Withheld]

Recent Articles on Family Immigration

USCIS Processing Times: I-130s and I-129Fs at All Service Centers
USCIS Processing Times: I-130s and I-129Fs at All Service Centers

The below table shows processing times for Forms I-130, Petitions for Alien Relatives, filed by U.S. citizens for immediate relatives (i.e., spouses, parents, or children under 21). In particular, these processing times are for standalone I-130s, meaning I-130s not filed together with Form I-485, Application to Adjust Status. Forms I-129, Petitions for Alien Fiancé(e)s. Upon…

Looking to Sue Over the Public Charge Rule?
Looking to Sue Over the Public Charge Rule?

The Department of Homeland Security’s new public charge rule is subject to challenge in court on multiple grounds. American Immigration Lawyers Association (AILA) is seeking potential plaintiffs for litigation challenging the USCIS Policy Manual as it relates to pubic charge issues. Potential plaintiffs include: Persons with rejected applications, denied applications, or requests for evidence due…

Getting Married in China: a Guide for U.S. Citizens
Getting Married in China: a Guide for U.S. Citizens

Contents1. Introduction2. Requirements3. Procedures3.1 Jurisdiction3.2 What to Do3.3 Fees and Timing3.4 Documents Needed4. ConclusionAppendix A. Selected Marriage Registration Office Contact InformationAppendix B. Affidavit of Marriageability 1. Introduction This article gives an overview of the requirements and procedures for marriage in China between a U.S. citizen and a Chinese citizen.[1] Chinese law applies when getting married…

Litigation Update:  Presidential Proclamation Requiring Health Insurance
Litigation Update: Presidential Proclamation Requiring Health Insurance

On Oct. 4, 2019, President Trump issued a proclamation suspending issuance of immigrant visas to applicants who lack either U.S. health insurance or substantial assets to cover their health expenses. For a summary, see our firm’s client alert. On May 4, 2020, the Federal Court of Appeals for the Ninth Circuit refused to stay a…

Trump Suspends Entry of Immigrants Who Are “Risk” to Labor Market
Trump Suspends Entry of Immigrants Who Are “Risk” to Labor Market

President Trump has published the Executive Order suspending immigration that he tweeted was forthcoming. Effective Date: The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET). Whose Entry Is Suspended? The order suspends the entry of any individual seeking to enter the U.S. as an immigrant who: Is outside the United States…

Applying for a Replacement or New Immigrant Visa
Applying for a Replacement or New Immigrant Visa

An immigrant visa is generally valid for a period of up to 6 months. You must enter the U.S. within this 6-month period.[1] Consular officers do not have the authority to extend the validity of an immigrant visa (IV). But, as explained below, it may be possible to apply for a replacement or new IV.…