Getting your US residency through a family member can be a great way to immigrate to the US, but the process can be confusing. In this post, we want to help you know what to do!
- For both paths, the first step is to submit a family petition (Form I-130) to the US Citizenship and Immigration Services (USCIS). You need to have a family member who can submit the petition on your behalf.
- The second step is to either A) submit an application for adjustment of status (Form I-485) or B) apply for consular processing abroad. Adjustment of Status is the process of changing your immigrant status to being a lawful permanent resident (LPR) while in the United States. Consular Processing is the process of applying for an immigrant visa at a U.S. Consulate abroad and entering as a permanent resident.
Which path is right for you? Generally, you should apply for consular processing if 1) you are still living outside the US, 2) you just want to consular process so that you can travel to your home country and pay less in government fees, or 3) you are not able to adjust your status because you entered the US without an inspection. If you entered illegally, you will also need an unlawful presence waiver to be able to complete the consular process.
Who can use adjustment of status (obtain residence without leaving the country)? Generally, if you were inspected and admitted or paroled, are a VAWA self-petitioners, or if you put in a petition before April 30, 2001, you can apply for adjustment of status (Immigration and Nationality Act [INA], Section 245[a] and Section 245[i]. There are exceptions to this.). To illustrate: people who came in with a visa and are immediate relatives, e.g. spouses of US citizens who came as tourists will be able to adjust their status to become permanent residents, even if they have violated the terms of their visas. Immigrants who were paroled into the country, such as DACA and TPS recipients who travelled on advance parole and some relatives of active members of the military who were paroled in place can apply for residency inside the United States. Additionally, immigrants who were in an abusive marriage to a US citizen, special immigrant juveniles, and some widowers could be able to adjust their status. Lastly, Section 245(i) of the INA allows immigrants to adjust their status even if you came into the US without paperwork, as long as you filed a visa petition before April 30, 2001 and are able to pay an additional government fee.
Keep in mind that each case is unique and the details of your case may take special planning. We recommend that you talk with an experienced immigration attorney before you move forward with your case.
Iliana Dobrev and Claudia Acosta are two of our Castan and Lecca attorneys who specialize in immigration. As an immigrant herself, Iliana is passionate about advocating for and defending immigrants. She is delighted to help families stay together and pursue the American dream. Iliana is a member of the American Immigration Lawyers Association and worked in both a fellowship and a firm specializing in immigration law. Iliana is fluent in English, Bulgarian and Spanish. Claudia was born in Lima, Peru and immigrated to the US with her family when she was a teenager. While in law school, she developed a passion for Immigration and Criminal law, clerked for different immigration law firms, and volunteered at the Immigration department of the Hispanic Interest Coalition of Alabama. She graduated from law school in May 2013 and specializes in Immigration, Criminal Defense, Personal Injury, and Worker’s Compensation.
If you have any questions or need an experienced immigration attorney, contact us online or call 404-923-7570 for a free consultation.