Family

While business immigration issues are important because of the financial ramifications, family immigration may be even more stressful and vital to reaching your long-term goals. Christine Swenson is proud to work with potential immigrants on family-related immigration matters to make sure you get the right advice and guidance throughout this challenging process. Swenson Law Office, PC, is experienced in this field and will do everything we can to reach a successful ending for you and your family.

How do I immigrate to the US?

To say that immigration to the USA can be challenging is an understatement.  Without an employer to sponsor you or the special skills to open the immigration doors into the States, the next best way to immigrate is through family sponsorship.  Here we will look at the family-based immigration options currently available.  There are four family-based categories:

  1.  US citizens can petition (or sponsor) for their parents, spouses, and unmarried children. For spouses and parents, there is no long wait.  As quickly as a petition can be processed, your spouse or parent can be with you immediately. Unfortunately, there is a wait – quite a long one depending on the country your children are citizens of.  This is called the first preference family-based category.
  2. If you hold a green card, you are a lawful permanent resident (LPRs) and you can petition for your spouse and your children. LPRs cannot sponsor their parents.  Spouses and unmarried children under age 21 are treated differently than unmarried children over age 21.  For the first group (spouses and unmarried children under age 21) , there is a wait, but as of today, that is just a few years – which for immigration is pretty good, sadly.  This is commonly called the second preference family-based category.
  3. US citizens also have the ability to sponsor their married children. There is an extensive wait with this type of family petition but, if it is the only way to immigrate to the US, it is useful.  This is the third preference family-based category.
  4.  Lastly, US citizens can petition for their siblings. As with the third preference, there is an extraordinary wait.  This last category is called fourth preference family-based.What if my family member is still outside of the US?

If the family member you want to sponsor is outside of the United States, the process gets more challenging. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security is responsible for evaluating when an immigrant already in the United States is eligible to remain or to adjust her status. When your loved one is outside of the United States, the Department of State and its officers abroad evaluate whether or not she can emigrate.  Hiring an immigration lawyer is the best decision you can make to assist you and your family member(s) through this two-step process, which is called consular processing.

What about US citizenship?

After you have been a lawful permanent resident, you may be eligible to apply for US citizenship!  The general rule is you are eligible five years or more after you become an LPR.  There is an exception, if you are currently married to a US citizen, that allows you to apply three years after becoming a resident.

  • You must be in the US during the three months prior to filing your application.
  •  You must demonstrate “physical presence” in the US for the five years preceding your application.
  • This doesn’t mean you can’t travel but you can’t be outside the US for more than 180 days during any one calendar year.
  • There are a few circumstances, such as military service abroad, that are valid exceptions to the five year physical presence rule.
  • If you are outside the US for more than a year, you should consult with a licensed immigration attorney to discuss your specific      situation.
  •  If you are married to a US citizen who is employed abroad, you should consult with a licensed immigration attorney to discuss whether an uncommon benefit, under INA Section 319(b), applies and you (the LPR) qualify for expedited US citizenship naturalization.

In addition, you must prove you are a person of good moral character, which is typically addressed by a lack of a criminal history (traffic tickets are usually not important), completing your state and federal income taxes each year, and paying any back taxes owed.  Though the government tends to focus five years immediately preceding the application for citizenship, anything done at any time while you were in the US can be considered for good moral character.

In early 2014, the form used for requesting US citizenship changed dramatically. We recommend working with a licensed Denver immigration attorney who will put together a complete petition that leaves no doubt in the official’s mind that you qualify.  It’s worth the investment in yourself, your family and your future.  Spend a little money now and reap the rewards for years to come.

If you are an expatriate living abroad and have children outside of the US, you will want to make sure you register their births abroad so that they don’t have to demand their citizenship status later, when records may not be available.

What is Deferred Action for Childhood Arrivals (DACA)?

Deferred action is the process by which USCIS evaluates you, the petitioner, to determine whether or not you are a priority for deportation (also called removal).  If you are declared not to be a priority deportation case, then you will be put at the “bottom of the list,” Department of Homeland Security will focus on other, higher priority immigrants for removal, and, usually, if you are granted deferred action, you may apply for a work authorization.

The executive branch of government – the Office of the President, the secretary of Homeland Security – has the authority to defer removal action against an immigrant not in the US legally.  This branch identifies what qualifications someone must meet in order to receive deferred action.  Under the Deferred Action for Childhood Arrivals (DACA) initiative announced in June, 2012, the basic qualifications, including the latest from the 2014 immigration reforms, are:

  •  Entered the US before age 16;
  • Was in the US on or around June 15, 2012, and at the time of application for deferred action;
  •  Continuously resides in the US since January 1, 2007*
  • Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  • Is currently in school, has graduated or obtained a certificate of completion from high school or received a general education development (GED) certificate or has been honorably discharged from the Coast Guard or Armed Forces of the United States; and,
  •  Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

*Important Update: Due to a federal court order issued on February 16, 2015, USCIS will not begin accepting requests for the expansion of DACA on February 18, 2015, as originally planned.  You may request an initial grant of DACA or renewal of DACA under the original guidelines outlined above.

It is important to recognize that deferred action does not legitimize or legalize one’s undocumented immigration status.  You can still be deported if you become a threat to national security or public safety. DACA recipients are not eligible for Medicaid and are not required to obtain health insurance under the Affordable Care Act. However, under this program, you are eligible for a work permit!  Many states, like Colorado, allow DACA recipients to attend college at in-state, rather than out-of-state tuition rates.

Family Immigration Law is Constantly Changing

While there are many reasons why you should work with an immigration lawyer such as Christine Swenson, one of the most important points is simply that family immigration is a field in constant flux. What is true for immigration one day may not be true the next, so use an experienced lawyer who will be current with all of the latest rules and regulations. We look forward to assisting you very soon.

 

Swenson Law Office, PC

5161 E. Arapahoe Rd.,  Suite 120

Centennial,

CO

80122

720.414.2027