Immigration Law: Outgoing
Deciding to immigrate to the United States can be a daunting task.
US Immigration law is a complex and constantly changing specialty that requires that we as professionals always keep abreast of recent changes to the law. A knowledgeable and experienced immigration attorney in Peru can effectively advise American citizens wishing to bring their loved ones to the United States. We also assist Peruvian and/or foreign nationals to gain lawful access to the US.
Determining the best approach and completing the right forms is as tough as it is to decide to go through the process in the first place. At MONTEBLANCO & ASSOCIATES, we can help you bring your fiancee, spouse or other family members to the US. We offer personalized service and a superior approach to each person that we represent. Each case is reviewed carefully by an experienced immigration attorney versed in immigration law.
The majority of our clients were do-it-your-selfers; meaning, they decided on which immigration route to take, they completed and submitted the forms and even told their loved one what to say and when to lie to the interviewing officer. These are the types of mistakes that will leave a permanent scar on the applicant and perhaps may even disqualify them from applying again. There is one rule of thumb when applying to gain entry to the US, DO NOT LIE, BE HONEST AND FORTHRIGHT WITH THE INFORMATION GIVEN.
We also get a large number of applicants that require a Visa Waiver due to ineligibility stemming from criminal offenses, deportation or other reasons. While these cases do represent a challenge, we have had plenty of successes where our clients managed to obtain a conditional re-entry. Each case is different, share with us your situation and we will lead you in the right direction.
We have one primary focus under the Immigration Law umbrella where we can be of service:
FAMILY IMMIGRATION SERVICES (FIS).
Family Immigration Services (FIS):
Our Family Immigration Services are comprised of the following areas:
- Spouse Visa
- K-1 Fiance (E) Visa
- K-3 and K-4 Visas for Spouses and Unmarried Minor Children of US Citizens
- V Visas for Spouses and Unmarried Minor Children of Lawful Permanent Residents
- Adoption or Orphan Status
- Visa Waiver
- Deportation cases
- Other Family-Based Categories
- Visa to Canada (study/family/work)
What and Who Qualifies as a Family Relationships?:
These are grouped into two main categories: Immediate Relatives and Other Close Relatives. Immediate relatives of US citizens are given special preferential treatment and they have no limits on the amount of immediate relatives that may immigrate to the US, henceforth, there are no backlogs in under this category.
Who is considered an immediate relative?
The following are immediate relatives:
- Spouses of U.S. Citizens;
- Children of U.S. Citizens, if the child is unmarried and under 21; and
- Parents of U.S. Citizens, if the child has attained the age of 21.
The spousal relationship is one of the most common and easiest ways to immigrate to the U.S. Spouses of U.S. citizens are considered immediate relatives and there are no quotas on the amount of visas in this category. As a result, the spouse will have an immediately available visa number.
If the non-citizen spouse is in the U.S. pursuant to a lawful admission, the spouse may file for an immigrant visa and permanent residence in one petition package called a “one-step.” Upon applying for the visa petition and adjustment of status to permanent residence, the spouse may obtain work authorization, and, in certain circumstances, travel permission. As long as the spouse made a lawful entry into the U.S., the spouse will be forgiven for most other “status-related” immigration violations such as work without authorization and overstaying a period of authorized stay.
What specific criterion must the marriage meet to be considered valid?
For a marriage to be considered valid it must meet the following criteria:
- The marriage must have been valid at the time it was performed;
- The marriage must still be in existence at the time the immigration process in completed (and not just when the application is submitted); and
- The marriage must not have been entered into for immigration purposes.
In addition, for the marriage to be recognized each party must have been legally able to marry, and the marriage ceremony must be considered legal under the laws where it was performed.
In cases where one of the parties had previously been married, the divorce must be final and valid. Divorces granted when only one person was present are highly suspect. Whether a subsequent marriage is valid depends on the law of the place of the new marriage.
Common law marriages are valid for immigration purposes if the laws of the place of residence legally recognize common law marriage.
Customary marriages, those performed according to local custom but not licensed by civil authorities, may at times be valid for immigration purposes. Whether they are depends on whether the law of the country where the marriage occurred recognizes the marriage as valid.
Same sex marriages, although they may be legal in the state or country in which the marriage is obtained, are not recognized for immigration purposes.
Conditional Permanent Residence for new marriages:
A foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. Conditional permanent residence provides the same benefits as regular permanent residence; however, the spouse must take additional steps at the end of the two year conditional period to maintain permanent resident status. If the spouse does not file a petition to remove conditions on residence at the end of the two year period, the conditional permanent resident status automatically terminates and the foreign spouse is out of status, and may be deportable.
Marriages entered into while in removal proceedings:
There is a presumption of fraud if a marriage is entered into while the foreign spouse is in removal proceedings. Such marriages are subjected to strict scrutiny by USCIS and the married couple must submit extensive evidence to demonstrate that the marriage is, indeed, valid.
The K-1 visa is a hybrid visa that enables a U.S. Citizen to bring their foreign fiancé(e) to the U.S. with the intention of getting married and pursuing permanent residency.
In order to obtain a fiancé(e) visa a U.S. Citizen may file a petition with United States Citizenship and Immigration Service (USCIS) and must demonstrate:
- The parties must have met in person within the past two years (in some cases this requirement can be waived);
- They must have a good faith intention to marry; and
- They must be legally able and willing to get married within 90 days of the alien’s arrival in the U.S.
After the petition has been approved, the fiancé(e) has 4 months from the time the petition was approved to obtain the K-1 Visa at the U.S. Consulate in the foreign country.
What if I didn’t meet my fiancé(e) within the past two years?
The requirement of a personal meeting within the past two years can be waived in some cases. If seeking a waiver, the applicant must show that complying with the requirement would result in extreme hardship to the U.S. citizen, or that complying would violate traditional customs in the alien’s home country. If the waiver is denied, the couple must personally meet and establish the requirement of personal meeting before re-filing the K-1 petition.
What about the children of the K-1 beneficiary?
The beneficiary’s minor children should be included on the application, since they will be given derivative status and allowed to enter the U.S. with their parent.
What happens at the consulate when applying for the K-1 visa?
The K-1 applicant must pass a medical exam and not be subject to any grounds of inadmissibility. The K-1 applicant must also provide:
- A valid passport;
- Birth certificate;
- Police certificates from each place the alien has lived since age sixteen;
- Medical exam;
- Evidence that they will not become a public charge; and
- Evidence of termination of previous marriages, if not submitted with the petition application.
After the consulate receives these documents, they will conduct a background investigation and then schedule an interview. If the interview is successful, the beneficiary will be issued a visa. The beneficiary is given a copy of their petition and additional entry paperwork in a sealed envelope to present at the port of entry. The fiancé(e) will be admitted for 90 days. After admission, K-1 visa holders are not allowed to seek an extension of status, or to change to any other nonimmigrant classification. During the 90-day period of admission, the beneficiary must marry the U.S. citizen petitioner. After the marriage, the U.S. citizen spouse may file an application for adjustment of status for the beneficiary spouse.
If the marriage does not occur, the beneficiary must leave the U.S. within their 90-day period of authorized admission. If they fail to leave within this time, they become subject to deportation.
K-3 AND K-4 VISAS FOR SPOUSES AND UNMARRIED MINOR CHILDREN OF UNITED STATES CITIZENS:
Often, the process of immigrating based on a marriage to a U.S. Citizen spouse can take quite some time. In an effort to shorten the process of family unification, USCIS will grant a K-3 and K-4 visa. The spouse and children of a U.S. citizen may be admitted to the U.S. as K-3 and K-4 nonimmigrants to complete their process for permanent residence.
To be eligible for a K-3 nonimmigrant visa, the individual must meet the following requirements:
- Be the spouse of a U.S. citizen;
- Have a pending relative petition, Form I-130, filed with the USCIS; and
- Have the intent to enter the U.S. in order to await the completion of the permanent residence process.
K-4 nonimmigrants are derivative beneficiaries of the K-3 nonimmigrant. To be eligible for the K-4, the applicant must be unmarried, under 21 years of age, and be the child of the principle K-3 visa applicant or holder.
What happens after the K-3 or K-4 enters the United States?
Once in the U.S., the K-3 or K-4 nonimmigrant must file the application to adjust status to lawful permanent residence. These applications are submitted once the I-130 visa petitions have been approved by USCIS.
Can I travel on a K-3 or K-4 Visa?
Once a nonimmigrant has been granted a K-3 or K-4 visa, the individual may travel outside the U.S. and be readmitted with a valid K visa.
V VISAS FOR SPOUSES AND UNMARRIED MINOR CHILDREN OF LAWFUL PERMANENT RESIDENTS OF THE UNITED STATES:
The backlog and wait times in the family based second preference (FB-2) category for spouses and unmarried minor children of lawful permanent residents can last several years. The V visa is designed to reunite spouses and minor children of lawful permanent residents with their families while their visa applications are processed. The V visa allows the visa holder to be lawfully employed in the U.S., and, in some cases, to travel outside the U.S.
To qualify for a V visa, the applicant must be the spouse or unmarried child under 21 of a permanent resident for whom an application for immigration was filed on or before December 21, 2000. The application for immigration must have been pending for three years at the time of the application for the V visa.
If you are outside the U.S., you must apply for V status at selected U.S. embassies or consulates. People within the U.S. may apply for V status without leaving the country. This is often a better and safer alternative because an individual who has been unlawfully present in the U.S. who then travels abroad for any reason (even if to obtain a V visa) will trigger a 10 year bar to reentry.
ADOPTION OR ORPHAN STATUS:
Many U.S. couples adopt children abroad. Immigration considerations should be a very important consideration in the adoption process.
What are the requirements for obtaining permanent residence for adopted foreign orphans?
An orphan is a child who is orphaned by the death, disappearance of, abandonment or desertion by, or separation or loss from, both parents, or if the sole surviving parent is incapable of providing the child with proper care and irrevocably relinquishes custody of the child for emigration and adoption. To immigrate an adopted foreign orphan the following requirements must be met:
- The child’s country of origin must permit adoptions by foreign nationals, and the prospective U.S. citizen parents must comply with all of the rules of that country relating to adoptions;
- The child to be adopted must be under 16 years old at the time the petition to classify the child as an immediate relative is filed. If the child is adopted along with a sibling, then one of the siblings must be under 16 and the other siblings must be under 18 at the time the petition is filed;
- The child must have no surviving parent, or demonstrate that the parents have disappeared, abandoned or deserted the child, or, in the case of a sole surviving parent, must demonstrate that the sole surviving parent cannot care for the child and has authorized the child’s adoption and immigration; and
- The adoptive parent must be a U.S. citizen, although in the case of a married couple, who must make a joint petition, only one needs to be a U.S. citizen. Single adoptive parents must be at least 25 years of age.
What if the child is adopted in the United States?
If the child was not adopted abroad, or if the foreign adoption was invalid, the child must be adopted in the U.S. For this to occur, the following requirements must be met:
- The parent, or a person or organization acting on the parent’s behalf, must have legal custody of the child under the laws of the child’s home country;
- The parent must obtain an irrevocable release for adoption and immigration from the person or entity that last had legal custody of the child;
- The parent must comply with all pre-adoption requirements of the state in which they will live with the adoptive child; and
- The state in which the adoptive parent and child will live must allow a re-adoption or else provide for judicial recognition of a foreign adoption that was invalid for immigration purposes.
What is included in the home study requirement?
Before an adopted child can immigrate, the adoptive parents and any other adults that will be living with the adopted child must be evaluated through a home study conducted by a USCIS authorized organization. The home study must be submitted to USCIS while it is less than six months old.
The State Department website provides helpful information on foreign adoptions at http://Travel.State.Gov.
OTHER FAMILY-BASED CATEGORIES:
If an individual is not an immediate relative, then the individual must be in one of the specified family relationships to immigrate. Not all family relationships serve as a basis to immigrate. The following are other relatives who are allowed to immigrate:
- First preference (FB-1): Unmarried adult (over 21) sons and daughters of U.S. citizens;
- Second preference (FB-2A and FB-2B): Spouses and unmarried minor (under 21) children of permanent residents;
- Third preference (FB-3): Married adult (over 21) sons and daughters of U.S. citizens; and
- Fourth Preference (FB-4): Siblings of U.S. citizens.
Visas are allocated based on the type of relationship with a certain allotment of visas going to each of the preference categories. Visas are then further allocated based on the country in which the intending immigrant was born.
What is a priority date?
The priority date is the date on which the immigrant visa petition (I-130) is accepted for processing by USCIS. Immigrant visas are then issued in chronological order in each of the preference categories based on priority dates.
If I apply for my family member, can his or her immediate family also immigrate with him or her?
The individual obtaining the immigrant visa in the various categories is called the principal beneficiary. Those individuals immigrating with the principal beneficiary are called derivative beneficiaries. In the immediate relative categories, derivative beneficiaries may not immigrate with the principal beneficiary. However, in the other preference categories, derivatives may immigrate with the principal beneficiary. Those immediate family members of the principal beneficiary may obtain the same status as the principal beneficiary if they are accompanying or following-to-join the principal beneficiary.
For a detailed breakdown of the preference categories and countries of chargeability, see the Department of State visa bulletin which is updated monthly at http://www.Travel.State.Gov.
Lastly, if you are a U.S. Citizen or a Permanent Resident and it is your objective is to bring your fiancée, spouse or loved one to the US, let us do the work for you on both sides of the border and file the right petition at the right time. Our experienced immigration attorneys are able to assist you with H1, B, L1, K1, E2, relatives, employment, investment, asylum and many other Visas. Do Let Us Know how we can be of service.