Immmigration Through Family Attorney Tampa

Immigration through a Family Member

A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. Such status can be accorded through a petition filed by a family member.

However, the USCIS categorizes family petitions into two separate categories. The first category is that of Immediate Relatives. These include:

the spouse of a United States citizen;
the minor child (under 21 years of age) of a United States citizen.
The parent of a United States Citizen. However, the United States citizen must be at least 21years of age in order to petition for his/her parent;

Individuals classified as immediate relatives are immediately eligible to adjust status to that of a lawful permanent resident. They do not have to wait for a visa number to become available to them. If the applicant is in the United States, they may file the necessary paperwork in the United States and await an interview. However, if the applicant is outside of the United States, they will require consular processing.

The second category of classification is that of the Preferred Relative. These individuals include:

Adult sons/daughters of United States citizens, who are either married or single;
Spouses and children of lawful permanent residents. However, while a lawful permanent resident may sponsor a minor child or adult son/daughter, they may not sponsor any children who are married;
Siblings of United States citizens. The United States citizen must be at least 21 years of age.

Individuals classified as preferred relatives are not immediately eligible to adjust status to that of a lawful permanent resident. They must await the availability of a visa number, as issued by the U.S. Department of State. For a review of the timeframe of visa availability please visit the U.S. Department of State website, or click on the following link: http://travel.state.gov/visa/bulletin/bulletin_1360.html

Immigration and Nationality Act § 245(i)

Whether an individual is classified as an immediate or preferred relative, there may be obstacles to adjusting status to that of a lawful permanent resident. Said obstacles normally arise when the individual is present in the United States and wishes to pursue adjustment of status therein. Per the Immigration and Nationality Act, an individual who entered the United States illegally, i.e., the individual entered without inspection, may not adjust status in the United States. Additionally, a preferred relative who entered the United States legally, but did not maintain authorized stay, will be deemed inadmissible. The USCIS will require that the individual return to their native country and request consular processing. Unfortunately, if the individual had any period of unauthorized stay in the United States in excess of 6 months/1 year, they will be barred from reentering the United States for 3/10 years.

In an effort to ameliorate this predicament, the U.S. government has made exceptions to the above inadmissibility factors. Namely, if an individual is grandfathered under § 245(i) of the Act, they may adjust status in the United States by paying a fine to the USCIS. For guidance on whether an applicant may be grandfathered under the law, please visit the following link:
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/245iclarification030905.pdf

Determining whether an individual is grandfathered under § 245(i) can be a complicated and daunting task. Many individuals are unaware that the protection under the law can be acquired derivatively, i.e., through a parent, or that they may be exempt from the physical presence requirement of the law. Should you need assistance in this regard, Diaz Shafer, P.A. is both capable and willing to assist you with this matter.