VISAS

US Immigrant and Nonimmigrant Visas

Immigrant Visas

Family-Based Petitions
Burden of Proof in Visa Proceedings
Immediate Relative & Family Preference
FAMILY PREFERENCE VISA CATEGORIES

INA §245(i)

INA §245(i) Generally

Bona Fide Marriage Exemption
204(c) Marriage Fraud Finding
Visa Revocation

Immigrant Visas

Visas for immigrating to the United States

Immigrant Visas

Family-Based Petitions

FAMILY-BASED VISA PETITIONS

PARENTS PETITIONING FOR CHILDREN

The age and marital status of your children are important factors in the immigration process. For immigration purposes, a “child” is an unmarried person under 21 years of age. A “son” or “daughter” is a person who is married or is 21 years of age or older. For additional clarification, please read the requirements listed below.

| If you are a... | You may petition for... |

| --- | --- |

| U.S. citizen |

Children (unmarried and under 21) - Unmarried sons and daughters (21 or over) - Your son or daughter’s child(ren) may be included on this petition. - Married sons and daughters (any age) - Your son or daughter’s spouse and/or child(ren) may be included on this petition. |

| Permanent resident (Green Card holder) |

Children (unmarried and under 21) - Your child’s child(ren) may be included on this petition. - Unmarried sons and daughters (21 or over) - Your son or daughter’s child(ren) may be included on this petition. |

See PARENT PETITIONING FOR CHILD PAGE

ADULT SONS & DAUGHTERS PETITIONING FOR A PARENT

To petition for your parents (mother or father) to live in the United States as Green Card holders, you must be a U.S. citizen and at least 21 years old. Green Card holders (permanent residents) may not petition to bring parents to live permanently in the United States.

| If you are a U.S. citizen who is at least 21 years old, and your… | Then you must submit... |

| --- | --- |

| mother lives outside the United States, |

Form I-130 - A copy of your birth certificate showing your name and your mother’s name - A copy of your Certificate of Naturalization or U.S. passport if you were not born in the United States |

| father lives outside the United States, |

Form I-130 - A copy of your birth certificate showing your name and the names of both parents - A copy of your Certificate of Naturalization or Citizenship or U.S. passport if you were not born in the United States - A copy of your parents’ civil marriage certificate |

| father lives outside the United States and you were born out of wedlock and were not legitimated by your father before your 18th birthday, |

Form I-130 - A copy of your birth certificate showing your name and your father's name - A copy of your Certificate of Naturalization or Citizenship or U.S. passport if you were not born in the United States - Evidence that an emotional or financial bond existed between you and your father before you were married or reached the age of 21, whichever came first |

| father lives outside the United States and you were born out of wedlock and were legitimated by your father before your 18th birthday, |

Form I-130 - A copy of your birth certificate showing your name and your father's name - A copy of your Certificate of Naturalization or Citizenship or U.S. passport if you were not born in the United States - Evidence that you were legitimated before your 18th birthday through the marriage of your natural parents, the laws of your state or country (of birth or residence), or the laws of your father’s state or country (of birth or residence) |

| petition is filed to bring your step-parent to live in the United States, |

Form I-130 - A copy of your birth certificate showing the names of your birth parents - A copy of the civil marriage certificate of your birth parent to your step-parent showing that the marriage occurred before your 18th birthday - A copy of any divorce decrees, death certificates, or annulment decrees to show that any previous marriage entered into by your natural or step-parent ended legally |

| petition is filed to bring your adoptive parent to live in the United States, |

Form I-130 - A copy of your birth certificate - A copy of your Certificate of Naturalization or Citizenship if you were not born in the United States - A certified copy of the adoption certificate showing that the adoption took place before your 16th birthday - A statement showing the dates and places you have lived together with your parent |

Immigrant Visas

Burden of Proof in Visa Proceedings

BURDEN OF PROOF FOR A VISA

A. Burden of Proof

The burden of proof to establish eligibility for an immigration benefit always falls solely on the benefit requestor.[1] The burden of proof never shifts to USCIS.

Once a benefit requestor has met his or her initial burden of proof, he or she has made a prima facie case. This means that the benefit requestor has come forward with the facts and evidence which show that, at a minimum, and without any further inquiry, he or she has proven initial eligibility for the benefit sought, though in certain cases the officer is then required to determine whether approval or denial is appropriate, in his or her discretion.

B. Standards of Proof

The standard of proof is different than the burden of proof. The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. The standard of proof applied in most administrative immigration proceedings is the preponderance of the evidence standard. Therefore, even if there is some doubt, if the benefit requestor submits relevant, probative, and credible evidence that leads an officer to believe that the claim is “probably true” or “more likely than not,” then the benefit requestor has satisfied the standard of proof.[2]

If the requestor has not met this standard, it is appropriate for the officer to either request additional evidence or issue a notice of intent to deny, or deny the case.[3]

The preponderance of the evidence standard of proof does not apply to those applications and petitions where a different standard is specified by law. The Immigration and Nationality Act (INA) provides for a higher standard in some cases, such as the clear and convincing evidence standard that is required when a beneficiary enters into a marriage while in exclusion, deportation, or removal proceedings, and to determine the citizenship of children born out of wedlock.[4]

PREPONDERANCE OF EVIDENCE

Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. See, e.g., Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965) (finding that the petitioner had not established eligibility by a preponderance of the evidence because the submitted evidence was not credible); cf. Matter of Patel, 19 I&N Dec. 774, 782-3 (BIA 1988) (noting that section 204(a)(2)(A) of the Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), requires a higher standard of clear and convincing evidence to rebut the presumption of a fraudulent prior marriage).

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)

(3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.

More info regarding Matter of Chawathe is available on the Asylee Adjustment page.

Full decision here.

Matter of Martinez, 11 I&N Dec. 151, 152 (BIA 1965)

Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965)

Matter of Patel, 19 I&N Dec. 774, 782-3 (BIA 1988)

Unsupported block

BURDEN OF PROOF

The burden of proof to establish eligibility for an immigration benefit always falls solely on the benefit requestor.

The burden of proof never shifts to USCIS.

STANDARD OF PROOF

The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. The standard of proof applied in most administrative immigration proceedings is the preponderance of the evidence standard.

BURDEN V. STANDARD

The standard of proof is different than the burden of proof. The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. The burden of proof is WHO has to meet the standard of proof.

Immigrant Visas

Immediate Relative & Family Preference

Family Based Immigration

A foreign citizen seeking to live permanently in the United States requires an immigrant visa (IV). To be eligible to apply for an IV, a foreign citizen must be sponsored by an immediate relative who is at least 21 years of age and is either a U.S. citizen or U.S. Lawful Permanent Resident (that is, a green-card holder).

Immediate Relative v. Family Preference

There are two types of family-based immigrant visas:

Immediate Relative – these visas are based on a close family relationship with a U.S. citizen, such as a spouse, child or parent. The number of immigrants in these categories is not limited each fiscal year.

Family Preference – these visas are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). The number of immigrants in these categories is limited each fiscal year.

US Citizen Petitioner

Keep in mind that U.S. citizens can file an immigrant visa petition for their:

Spouse
Son or daughter
Parent
Brother or sister

Permanent Resident Petitioner

U.S. Lawful Permanent Residents can only file an immigrant visa petition for their:

Spouse
Unmarried son or daughter

Family Unification

Family unification is an important principle governing U.S. immigration policy. The family-based immigration system allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.

An unlimited number of visas are available every year for the immediate relatives of U.S. citizens. Prospective immigrants in this category must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. Immediate relatives are:

spouses of U.S. citizens;
unmarried minor children of U.S. citizens (under 21 years old); and
parents of U.S. citizens (petitioner must be at least 21 years old to petition for a parent).

A limited number of visas are available every year under the family preference system. Prospective immigrants in the family preference system must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. The family preference system includes:

adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least 21 years old to petition for a sibling); and
spouses and unmarried children (minor and adult) of LPRs.

In order to balance the overall number of immigrants arriving based on family relationships, Congress established a complicated system for calculating the available number of family preference visas for any given year. The number is determined by starting with 480,000 (the maximum number in principle allocated for all family-based immigrants) and then subtracting the number of immediate relative visas issued during the previous year and the number of aliens “paroled” into the United States during the previous year. Any unused employment preference immigrant numbers from the preceding year are then added to this total to establish the number of visas that are available for allocation through the family preference system. However, by law, the number of family-based visas allocated through the preference system may not be lower than 226,000. The number of immediate relatives often exceeds 250,000 in a given year and triggers the 226,000 minimum for preference visas. As a result, the total number of family-based visas often exceeds 480,000. In Fiscal Year (FY) 2019, family-based immigrants comprised 68.8 percent of all new LPRs in the United States.

LINKS

USCIS--Bringing Your Parents to the US

Immigrant Visas

FAMILY PREFERENCE VISA CATEGORIES

Immediate Relatives

An Immediate Relative for immigration purposes is the spouse, minor child or parent of a U.S. citizen. See the Green Card for Immediate Relatives of U.S. Citizen page on the USCIS website for more info.

Family Preference Categories

Other family members eligible to apply for a Green Card are described in the following family “preference immigrant” categories:

First preference (F1) - unmarried sons and daughters (21 and older) of U.S. citizens;

Second preference (F2A) - spouses and children (unmarried and under 21 ) of lawful permanent residents;

Second preference (F2B) - unmarried sons and daughters (21 years of age and older) of lawful permanent residents;

Third preference (F3) - married sons and daughters of U.S. citizens; and

Fourth preference (F4) - brothers and sisters of U.S. citizens (if the U.S. citizen is 21+)

INA §245(i)

Section 245(i) of the Immigration and Nationality Act (INA), as amended by the Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 (Pub. L. 106-553 and -554), enables certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of:

The manner they entered the United States;
Working in the United States without authorization; or
Failing to continuously maintain lawful status since entry.

INA §245(i)

INA §245(i) Generally

What is INA §245(i) ?

The manner they entered the United States;
Working in the United States without authorization; or
Failing to continuously maintain lawful status since entry.

To qualify for this provision, you must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative, or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001. You must complete Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, to apply under Section 245(i) provisions and submit it with your Form I-485. In most cases, you must also pay an additional $1,000 fee.

Eligibility Criteria

You may be eligible to receive a Green Card through section 245(i) if you:

Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
Were physically present in the United States on Dec. 21, 2000, if you are the principal beneficiary and the petition was filed between Jan. 15, 1998, and April 30, 2001;
Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;
Properly file Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A;
Pay the $1,000 fee (unless exempt);
Are physically present in the United States at the time you file Form I-485 and Supplement A;
Have a visa immediately available to you;
Are admissible to the United States or eligible for a waiver of inadmissibility or other form of relief; and
Warrant the favorable exercise of discretion (this means the positive factors in your case outweigh the negative factors).

Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent under section 245(i) of the INA.

Qualifying Petition or Labor Certification

Labor certifications or visa petitions filed to preserve an individual’s adjustment eligibility under Section 245(i) must be both “properly filed” (signed and submitted with the correct fees) and “approvable” (meritorious based on the facts and “non-frivolous”) when filed. To meet this test at a minimum, the filing must be timely (filed by April 30, 2001) and meet all applicable substantive requirements (“approvable when filed”). Deficiencies such as lack of fee or original signature disqualify the submissions.

If the Petition Or Labor Certification Is Withdrawn, Denied Or Revoked

If you withdraw the petition, or if USCIS or the former Immigration or Naturalization Service (INS) denied or revoked your petition after approval, you may still be grandfathered, depending on whether the visa petition or labor certification was “approvable when filed.” To remain eligible, the changed circumstances must relate to factors beyond your control rather than the merits of the petition at the time of filing.

If the Petitioner Dies Or The Employer Otherwise Is Unable To Maintain The Petition

As long as the petition or labor certification application was “approvable when filed,” you should remain grandfathered if the:

Petitioner dies;
Family member who filed the petition divorces you;
Employer who filed the labor certification or subsequent Form I-140 goes out of business;
Petitioner or the employer chooses to withdraw the petition or labor certification; or
Petitioner or employer is otherwise not able to maintain the petition or labor certification application.

Adjustment of Status Under INA §245(i)

You should submit all of the following evidence with your Form I-485:

Two passport-style photos;
A copy of your government issued identity document with photograph;
A copy of your birth certificate;
A copy of your passport page with a nonimmigrant visa (if applicable);
A copy of your passport page with admission (entry) or parole stamp (if applicable);
Form I-94 Arrival/Departure Record (if applicable);
Form I-693, Report of Medical Examination and Vaccination Record;
Form I-864, Affidavit of Support, if applicable;
Form I-944, Declaration of Self-Sufficiency, if applicable;
Either the concurrently filed immigrant petition or Form I-797, Notice of Action, for the pending or approved immigrant petition that you are using as your basis of adjustment, if you are not adjusting based on the grandfathered immigrant petition;
The correct Form I-485 filing fee; and
Supplement A to Form I-485 with:
- A copy of the immigrant petition or labor certification or Form I-797, Notice of Action, that you are using as the basis for 245(i) grandfathering;
- Proof of your physical presence in the United States on Dec. 21, 2000, if applicable; and
- $1,000 fee, if applicable.

USCIS Web Page on 245i

Bona Fide Marriage Exemption

WHO MUST REQUEST A BONA FIDE MARRIAGE EXEMPTION?

(8) Any alien who seeks to adjust status based upon a marriage which occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto.

(i) Commencement of proceedings. The period during which the alien is in deportation, exclusion, or removal proceedings or judicial proceedings relating thereto, commences:

(A) With the issuance of the Form I-221, Order to Show Cause and Notice of Hearing prior to June 20, 1991;

(B) With the filing of a Form I-221, Order to Show Cause and Notice of Hearing, issued on or after June 20, 1991, with the Immigration Court;

(C) With the issuance of Form I-122, Notice to Applicant for Admission Detained for Hearing Before Immigration Judge, prior to April 1, 1997,

(D) With the filing of a Form I-862, Notice to Appear, with the Immigration Court, or

(E) With the issuance and service of Form I-860, Notice and Order of Expedited Removal.

(ii) Termination of proceedings. The period during which the alien is in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto, terminates:

(A) When the alien departs from the United States while an order of exclusion, deportation, or removal is outstanding or before the expiration of the voluntary departure time granted in connection with an alternate order of deportation or removal;

(B) When the alien is found not to be inadmissible or deportable from the United States;

(D) When proceedings are terminated by the immigration judge or the Board of Immigration Appeals; or

(E) When a petition for review or an action for habeas corpus is granted by a Federal court on judicial review.

(iii) Exemptions. This prohibition shall no longer apply if:

(A) The alien is found not to be inadmissible or deportable from the United States;

(B) Form I-122, I-221, I-860, or I-862, is canceled;

(D) A petition for review or an action for habeas corpus is granted by a Federal court on judicial review;

(E) The alien has resided outside the United States for 2 or more years following the marriage; or

(F) The alien establishes the marriage is bona fide by providing clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, was not entered into for the purpose of procuring the alien's entry as an immigrant, and no fee or other consideration was given (other than to an attorney for assistance in preparation of a lawful petition) for the filing of a petition.

INA § 245(a)(iii) Exemptions.

(E) The alien has resided outside the United States for 2 or more years following the marriage; or

204(c) Marriage Fraud Finding

Visa Revocation

Not Subject to Court Review

Holding: Revocation of an approved visa petition under 8 U.S.C. § 1155 based on a sham-marriage determination by the Secretary of Homeland Security is the kind of discretionary decision that falls within the purview of Section 1252(a)(2)(B)(ii), which strips federal courts of jurisdiction to review certain actions "in the discretion of" the agency.

Confirmed by SCOTUS in a 9-0 decision issued December 2024, Bouarfa v. Mayorkas (https://www.supremecourt.gov/opinions/24pdf/23-583_onjq.pdf)