What Is Family-Based Immigration?

Family-based immigration is when a person petitions for their family member to obtain some type of immigration status. In most cases, the petition is for a green card.

Who Is Eligible To Sponsor A Relative For A Green Card?

A US citizen or permanent resident of the US is eligible to sponsor a relative for a green card.

What Are The Obligations Of A Sponsor?

A sponsor must begin by filing a petition. The sponsor can withdraw or abandon that petition at any time. When the beneficiary files for their immigrant visa, either by filing an I-485 in the US or completing the NVC process outside the US, then the sponsor must file an affidavit of support. In essence, this affidavit is a promise that they will assume financial responsibility for the beneficiary. In other words, the sponsor must ensure that the beneficiary will not become a public charge, which is a person who is primarily dependent upon government benefits within five years of receiving a green card.

The government requires the sponsor to prove that they have sufficient income to ensure the beneficiary doesn’t end up dependent upon the government. The standard is an income that is 25 percent above the federal poverty level for the associated household size, including the beneficiary. If the petitioner’s income is too low, then they can obtain a joint sponsor. However, the joint sponsor must be a US citizen or permanent resident of the US who lives in and plans to remain in the US. Both the petitioner and the joint sponsor would have the same financial responsibility. Typically, the joint sponsor must have a connection to the family sufficient for the government to entrust them with this financial responsibility. For example, an uncle would likely be acceptable, but a co-worker would not.

It is important to note that if the beneficiary does end up collecting public benefits within five years of the issuance of the green card, then the government can seek reimbursement from the sponsor. This is true even in situations where it seems unfair, such as a person who petitions for their spouse, but later gets a divorce from that spouse.

Which Relatives Can A US Citizen Sponsor In The US?

A US citizen can sponsor their spouse, parents (including an adoptive parent or a  stepparent if they married the petitioner’s parent before the petitioner turned 18), siblings (including half or adopted siblings), and children (including adopted children and stepchildren if the sponsor married the parent of the stepchildren before the stepchildren turned 18 years old). Permanent residents can sponsor their spouse and sometimes their children, but not their parent or sibling.

What Is A Conditional Green Card?

If an individual petitions for a green card for a spouse to whom they have been married fewer than two years, then they can only get conditional permanent residence. This means the green card will be valid for only two years, after which the sponsor must file for what’s called removal of conditions, which is a long-term green card. Many people refer to this as the 10-year green card, but that’s actually only the card itself; the status is permanent as long as the holder of the green card does not get in trouble.

If they do not file for removal of conditions, then the green card holder can lose their immigration status in the US, as well as their right to work in the US. This is basically an opportunity for the government to ensure that the marriage was a legitimate marriage, not one done only for the purpose of obtaining a green card, since the assumption is that if it were a fake marriage, something would have likely gone wrong within two years. However, even if something does go wrong in the marriage within the first two years, it can often be dealt with in the application process. For example, if the sponsored spouse became a victim of abuse by their spouse and can show evidence of the abuse (e.g. police reports, court records, photos of injuries), then the court would likely allow the spouse to maintain their status in the US.

If the couple simply wants a divorce, it may be harder for the sponsored spouse to maintain their status in the US. The spouse would have to prove that there is an extreme hardship justifying the divorce, or that the marriage was done in good faith. Extreme hardship is a difficult threshold to meet and USCIS  retains the right to deny  US immigration status if the couple is seeking a divorce. Examples of extreme hardship include medical issues involving the immigrant or their child, unexpected special education needs, or something else beyond the normal hardship everyone would experience if forced to leave the country. There is not one hardship that will always meet the standard; in every case, it comes down to whether or not the adjudicator believes the particular hardship meets the standard. For a short but good-faith marriage that ended in divorce, you will need to prove that you are divorced, and that the marriage was legitimate. You will need as much evidence as possible—proof that you have kids together, that you lived together, that you had joined your financial accounts or your bills, etc.

These are issues that should always be discussed with an attorney, as there are some hardships that one might think will meet the standard but in fact won’t, or vice versa, and USCIS will weigh different evidence differently in deciding whether a marriage was legitimate. An experienced attorney can make the right argument given a particular set of circumstances.

For more information on Family Based Immigration In The US, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling  (617) 297-7502 today.