Law Talk 31 – Family Based Immigrant Visas

In today’s episode of Law Talk, Trent and Andrew discuss the basics of the family-based visa process, from filing the I-130 to adjusting your status after entering the United States!


Andrew: Awesome. We’re live. It’s Law Talk time. We are back after the Thanksgiving break, which was pretty fun. And today we actually have a really interesting topic.

Andrew: I’m here with Trent and we’re going to talk about family-based immigrant visas. So the basic of it is that if you are a U.S. citizen or permanent resident, you can basically petition to have a family member come to the United States.

Andrew: So do you want to talk really briefly about the basics of this process? Like, who can file, who can they file for? Just really, cover the basics of it.

Trent: Sure. So we’ll start with people who are citizens. And we’ll start with family members that they can petition for, where they will have a visa immediately available. They refer to that as immediate relatives at USCIS. And for U.S. citizens, that would be your spouse, your children so long as they are unmarried and under 21, and your parents so long as you are over 21. The citizen is over 21.

Andrew: And this is the petitioner who is petitioning for these family members. So if I were, for example, a U.S. citizen and my parents lived out of the country, I’m over 21, so therefore I could petition for them?

Trent: Yes. Correct.

Andrew: Okay. And there is a different type. So there’s immediate relative. And then there’s just … is it just called family preference? Or family-based, or?

Trent: Yeah, family preference.

Andrew: Okay.

Trent: That’s how it’s delineated on government websites. If you’re a U.S. citizen, that would be your children who are over 21, and as well, your siblings. And if you are a permanent resident, that would be your spouse and your children.

Andrew: Yeah and I think that’s an important point too, that permanent residents can’t really apply for the immediate-relative style?

Trent: That’s correct. That’s a privilege only afforded to citizens, that’s right. And by immediate, we mean that there’s no wait time. There’s no limit as to how many of those visas can be granted in a year, which means as soon as it’s approved, it’s available. And that’s different from what we just discussed, the family preference categories.

Andrew: Yeah. Because for the family preference, basically like with a lot of visas and all that kind of stuff, there’s sometimes a waiting time, on the number of visas that the U.S. can approve per year? So this would be a number like … Is it 10,000? It’s something like that.

Trent: Yeah, I’m not sure what the number is off the top of my head.

Andrew: It’s not something that’s important.

Trent: I have more of an idea as to what the wait times are.

Andrew: Yeah, well that’s the important bit. Since they can only approve a certain number per year, per unit of time, then it accumulates a waiting time related to that.

Trent: Yes, that’s correct. So for instance a U.S. citizen petitioning for a sibling, that’s 10-plus years. And for the spouse and children of a lawful permanent resident it’s, I believe, two years or so, maybe a little longer than two years?

Andrew: Yeah, it’s really weird. And that’s why what we were just talking about, the immediate relative versus the generic thing, is so important, because of this waiting time difference.

Trent: Yes, that’s correct.

Andrew: So primarily what we’re going to talk about today is the ideal process. So like someone who is currently living outside the United States has their family member who’s a U.S. citizen petition for them to enter the United States under a visa.

Trent: Okay.

Andrew: So can you just generally walk us through the Goldilocks sort of process. Like what does it look like? What do you go through?

Trent: Sure. And it’s most commonly, I guess at our practice anyway, would be people who want to petition for a spouse to come over that they’ve met through a variety of means. These days it’s not uncommon to meet people online and form a relationship there, and eventually get married. And so in that scenario, you have to be married first. There’s the fiance visa, which is a whole different thing.

Andrew: That’s a whole separate-

Trent: But this is for people who get married and then start the process. So you would fill out a Form I-130 which is a petition. The petitioner would, with the spouse as the beneficiary. You would have to submit with that I-130 proof that you’re married and that you’re a U.S. citizen, as well as proof that it’s a bonafide relationship.

Andrew: Yeah, because immigration fraud is a topic that comes a lot.

Trent: Sure.

Andrew: Especially with fiance visas and stuff.

Trent: Sure.

Andrew: So being able to prove that you have a legitimate connection to … especially for a spouse you married in some other country … they’re going to look at that and they’re going to ask you questions about that.

Trent: Of course. Yep, yep. Absolutely. And that’s why they ask you to submit evidence of a bonafide relationship with the initial application, so you don’t have to do it later, I guess.

Andrew: It’s going to come up. You might as well do it the right way at the very beginning.

Trent: And one of the common … If you already have a child with this person, that’s as strong of evidence as there can be that it is a bonafide relationship.

Andrew: Yeah.

Trent: For instance, that’s one of the pieces of the evidence that they recommend that you could send in with an I-130 to prove the bonafide relationship.

Andrew: Yeah. So breaking the process down … So we started with the I-130, which is the “Hey, I’m putting you, the government, on awareness that ‘Hey, we’re filing our petition, submitting all of our information’,” all that kind of stuff?

Trent: Mm-hmm (affirmative).

Andrew: So what happens after they receive it, they process it? I believe it’s consular processing, right?

Trent: Sure. So there’s a delay after they receive it to when they’ll approve it, assuming that it is a legitimate relationship and that you’ve filled out the forms correctly. It will get approved and at that point USCIS sends the case to the National Visa Center, the NVC. And they notify you that they’re doing that and the NVC will notify you when they receive it.

Trent: At that point, you start what’s called consular processing. And that’s the process that ends in an interview at the embassy or consulate in the home country of the person that you’re petitioning.

Trent: And so that process involves submitting an affidavit of support. You have to prove that you can financially support your family member. So that involves submitting your financial information. If you don’t meet the threshold, then you can have a joint sponsor help out as well.

Andrew: So that would be like if your parents are like, “Hey, we’ll help you out.” It’s like co-signing on a loan, almost. You’re having someone else who’s like-

Trent: Along that same line, yeah.

Andrew: Yeah.

Trent: Exactly. There’s a form to fill out for them, and their financial information is also submitted.

Trent: There’s an online form that you have to fill out, a visa application. Of course there’s a couple more fees to be paid. And then they also give you a list of items, evidence, that they need before they can continue and schedule the interview.

Andrew: And this is usually extra stuff to make sure that everything’s on the up and up, right? So it’s like [crosstalk 00:07:53]

Trent: Yes, as well as a background checks into you. One of the more interesting things is that they require police background checks from the home country. Which they do provide you where to go in your country to get a national background check. Which obviously a lot of people wouldn’t know, especially if they don’t have any criminal history, they don’t know where to go. It’s not like, look up their criminal history. So we often have to help them out.

Andrew: I know when I was researching just family visa stuff in general, that was the one topic that every single site I went to had just a different laundry list of things to get done during the consular processing phase … from finger printing to making sure your vaccinations are up to date. There’s a whole bunch of stuff.

Trent: Well a medical exam is also part of it, basically a physical. And the USCIS has a specific … I’m not sure which agency it is, but they have a list of pre-approved doctors. So you can’t just go to a doctor and get a physical and then show up to your interview. You have to go to one of the specifically designated doctors in whichever country it is that they’re coming from.

Andrew: Okay. So now that we’ve talked about consular processing thing, we’re past that, the interview is scheduled. Could you maybe talk a little bit to that? So I know it’s very case-specific.

Trent: Sure.

Andrew: So unlike fiance visas for example, where you’re basically like, “Yeah, this where we met. This is where we went on our first date”; the questions can vary to be whatever. It really depends based on the case?

Trent: Yeah, for persons that are petitioning for their spouse, they would ask about the relationship. For other types or for other family members, obviously they don’t … You have birth certificates to prove that you’re either someone’s parent or someone’s child.

Trent: But they could ask for … Like, if you use drugs-

Andrew: It’s basically like the final step, when you’re getting all the final things out of the way?

Trent: Yeah. And it can also be a background-check-type thing to make sure that you’re the type of person that we want to allow into the U.S.

Andrew: Yeah.

Trent: Yep.

Andrew: This is also the last active thing you’ll do in the process before entering the United States, right?

Trent: Yes.

Andrew: So this is your last point of contact, after which they go deliberate things and stuff?

Trent: Yeah. So obviously if everything goes well you get approved for your visa, and then you enter the U.S. as a permanent resident. So that’s kind of the end of it.

Andrew: Which on paper, it seems easy. And I know we just talked about the Goldilocks scenario where everything is going right, every step of the way. But it does take quite a lot of time, there are a lot of filing fees. There are a lot of things that can go wrong, even just them asking for additional information.

Trent: Yes.

Andrew: So I guess one more thing that we should probably just chat about really quick is … What are common places where people mis-step or forget to submit a certain thing? What are things that can go wrong in the process? Because it’s a several-year process, really.

Trent: Yeah. Ideally [crosstalk 00:11:09] it wouldn’t take that long.

Andrew: Not several years.

Trent: Especially for the immediate relatives.

Andrew: I’m just being pessimistic.

Trent: Sure. Obviously for the non-immediate relatives, or non-immediate family members, there is a wait time. Just complying with … and that’s … I don’t want to act like I’m selling a service or that people couldn’t attempt to do it on their own.

Trent: But that’s one thing that we always make sure that we comply with all of the pieces of evidence that are asked for, for each submission. So making sure that you have everything that qualifies the relationship, as well as your status as a citizen, for instance with the I-130.

Trent: And then with the consular processing part, it can be frustrating dealing with the foreign governments with regards to getting a specific type of certified birth certificate, for instance. Or the 100%-correct police background check, that can require some back and forth. That can be a spot where it gets hung up.

Andrew: Yeah. I know one common thing that people seem to get hung up on is the actual interview itself. So I do a lot of research for doing articles and stuff, and one of the most common questions people ask is: What happens at the interview?

Andrew: Because I know, we have an article that is like “Common Questions You Might Receive.” And that’s a very common topic of like … It seems like such a barrier for a lot of people; like a mental barrier, not even like a physical one, for a lot of people.

Andrew: This is like the final section. So even just talking to a lawyer such as yourself about like, “What can I expect?” Getting that piece of mind.

Trent: Sure.

Andrew: Because it’s a big deal.

Trent: It is. It’s definitely something that you want to go right, obviously, because you’re petitioning for a loved one.

Andrew: Yeah. So is there any sort of other things related to family visas in general that you wanted to chat about? So for example, we mentioned earlier the difference between this, directly filing for a green card, fiance visas. What are the advantages of going through the family-based visa application process?

Trent: Well it’s one of the more straightforward processes. The U.S. government doesn’t want to stand in the way of a family living together in the U.S. And so there’s not anything that you have to do beforehand, like if someone’s trying to come here on a worker visa or employment visa, or a green card through employment.

Trent: The first step is simply proving that there is the relationship that you’re claiming. And then afterward it’s simply providing all the information that they need to feel secure in letting that person come live in the U.S.

Andrew: And that’s sort of-

Trent: And that’s kind of it, to put it simply but-

Andrew: That’s important though.

Trent: It is, because it’s not as many steps as most other processes are.

Andrew: I know that the thing I always find interesting about it is … compared to other steps, it has super-stringent requirements but as long as you meet those, the process itself is actually … not easy, but easier than, for example, filing for a work visa and waiting for all of these other things to go through.

Trent: Yeah. That’s correct. That’s the way I’d see it.

Andrew: Yeah. As long as you meet the requirements and have a citizen, or in some cases a permanent resident, already living in the United States who can petition for you … because that’s the big point though, is-

Trent: Sure.

Andrew: They’re petitioning on your behalf saying like, “Hey, my parent is a good person. Let them come into the United States.”

Trent: Yeah, exactly. And that, “I can financially support them.”

Andrew: Yes. And that, “I can financially support them.”

Trent: Yeah.

Andrew: So was there anything else … I know I keep asking this question. But it’s such a broad topic. There’s so many moving parts.

Trent: Oh, it is. We’ll be capable of having multiple Law Talks that dig deeper into-

Andrew: I mean, even just petitioning inside the United States is a whole separate-

Trent: It is, it is. And that depends on a lot of things as well, including whether or not they had a valid entry, or not. So there’s a couple of different ways that route can go as well.

Andrew: Yeah, I like that you bring that up. Because I know one interesting thing I always saw was, one of the requirements is your last entry into the United States has to have been legal or through the normal process or something.

Trent: Yep, with inspection.

Andrew: Yeah, with inspection. All that good stuff. So it’s just like one of those things where-

Trent: And that’s not available for all relatives, either.

Andrew: Yes.

Trent: That’s also something else that can be discussed.

Andrew: Yeah, that’s the thing. There’s so many case-specific things, which is why we were talking to the best possible scenario.

Trent: Sure, yeah. I understand.

Andrew: And that’s why you should talk to a lawyer. Because especially with the status of immigration nowadays, things are changing a lot. So making sure you’re on top of a lot of these changes, even super-minor changes to what forms you need to submit, can make a huge difference in your case.

Trent: Sure. Yeah, that’s true.

Andrew: I know [Elliot 00:16:54] is constantly talking about how, “Oh, this form changed like three times in the last year or something.” And it just sounds super frustrating to deal with.

Trent: Yes. That does happen. That’s true.

Andrew: All right. So I think that’s a good overview of the process.

Trent: Okay.

Andrew: I’m sure if there any specific questions, they’ll either post them on Facebook Live, or we can write an article about them. This a huge topic to explore.

Trent: Yeah. And especially I’d imagine with regards to our website. I’m guessing it’s one of the more popular things that people come to our website to get information about. Yeah, because it does … Don’t get me wrong, people can absolutely try themselves. But if it’s not a cut-and-dry thing … criminal records, stuff like that … it would probably be better to have an attorney help you out with that.

Andrew: Or at least talk to one. It’s one of those things where you don’t want to risk it, really.

Trent: Yeah.

Andrew: All right. So I think that’s about it for this Law Talk, unless you have anything final comments you want to talk about?

Trent: No. No, I don’t think so.

Andrew: Awesome. All right, so that’s it for this Wednesday. We’ll see everybody next week for another wonderful episode of Law Talk. And I hope everyone has a nice day.

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