Myths about Family Based Petitions

By Attorneys Robert L. Reeves and Lorena Larios Shah

Obtaining U.S. lawful permanent resident status by applying for adjustment to permanent resident status (a green card) through a family based petition may not be as simple as some think.  There are a few myths about this process that need to be addressed.  For example, it is often believed that by marrying a U.S. citizen, the U.S. Citizenship and Immigration Services (USCIS) will automatically grant him/her lawful permanent resident status.  Others believe that the USCIS will grant lawful permanent resident status to a parent(s) simply for having a U.S. citizen child.  Yet others are of the impression that just having a U.S. citizen relative, aunt or uncle, cousin, or grandparent, entitles them to a green card. In fact, adjustment to lawful permanent resident status requires careful analysis to determine whether an applicant is eligible by virtue of having a U.S. citizen spouse, child, parent or relative. 

Section 245 of the U.S. Immigration and Nationality Act (INA) states that an immigrant can adjust status in the U.S. if the following conditions are established: the applicant has been “inspected and admitted or paroled” in the U.S. at the time of entry; is lawfully in the U.S. (with an exception for immediate relatives); is a battered spouse including their children; or is a “special immigrant”. In addition, a visa number must be immediately available at the time of filing, the applicant must pass the medical and security clearances, and the applicant must otherwise be admissible. 

The INA and U.S. immigration case law defines what it means to be “inspected and admitted or paroled.”  Generally, the term admission is defined as a “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA 101(a)(13).  Inspection means a person must enter the U.S. with permission, usually by means of a visa.  Please note that there are restrictions for individuals who enter the U.S. with certain visas such as K, J, and some crewmen visas, among others.  

The INA defines an immediate relative as the spouse, parent and unmarried child under the age of 21 years of a U.S. citizen.  A U.S. citizen child can petition his/her parent(s) upon turning 21 years old. It is important to note that visas are always available to immediate relatives of U.S. citizens. Not included in an immediate relative category are the unmarried son(s)/daughter(s) of a U.S. citizen over the age of 21, the married son(s)/daughter(s) of a U.S. citizen, and the sibling(s) of a U.S. citizen. They must wait for a visa to become available in their visa category. Similarly, the spouse and children under 21 years and son(s)/daughter(s) 21 and over of a U.S. lawful permanent resident are not immediate relatives and these family members must also wait for a visa to become available.  There is no category for married son(s)/daughter(s) of legal permanent residents.  There are also no categories for grandparents petitioning grandchildren, aunts or uncles petitioning nieces or nephews, or cousins petitioning other cousins. 

If a person enters the U.S. without inspection, that person has not been “inspected and admitted and cannot adjust to permanent resident status.”  An exception exists if the applicant is grandfathered under section 245(i).  Section 245(i) of the INA generally provides that a person can still adjust status in the U.S., even if the entry was without inspection, overstayed, worked without authorization, or entered the U.S. as a Visa Waiver entrant or with a crewman visa. 

Section 245(i) is available if the person is a beneficiary and in some cases a derivative beneficiary of a family petition or labor certification filed on or before January 14, 1998, or on or before April 30, 2001 provided he or she was physically present in the U.S. on December 21, 2000.  There is a penalty fee of $1,000.  For example, if a person enters without inspection and subsequently marries a U.S. citizen, that person may not be eligible for adjustment of status in the U.S. unless there is evidence that eligibility can be established for Section 245(i) protection.

Obtaining a green card through a family member requires analysis and may not be as simple as just filing an application.