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)
- Bona Fide Marriage Exemption
- 204(c) Marriage Fraud Finding
- Visa Revocation
Immigrant Visas
Visas for immigrating to the United States
Family-Based Petitions
FAMILY-BASED VISA PETITIONS
PARENTS PETITIONING FOR CHILDREN
- 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. |
- 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. |
ADULT SONS & DAUGHTERS PETITIONING FOR A PARENT
- 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 |
- 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 |
- 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 |
- 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) |
- 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 |
- 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 |
Burden of Proof in Visa Proceedings
BURDEN OF PROOF FOR A VISA
A. Burden of Proof
B. Standards of Proof
PREPONDERANCE OF EVIDENCE
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)
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)
BURDEN OF PROOF
STANDARD OF PROOF
BURDEN V. STANDARD
Immediate Relative & Family Preference
Family Based Immigration
Immediate Relative v. Family Preference
US Citizen Petitioner
- Spouse
- Son or daughter
- Parent
- Brother or sister
Permanent Resident Petitioner
- Spouse
- Unmarried son or daughter
Family Unification
- 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).
- 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.
LINKS
USCIS--Bringing Your Parents to the US
FAMILY PREFERENCE VISA CATEGORIES
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) Generally
What is 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.
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;
(C) When the Form I-122, I-221, I-860, or I-862 is canceled;
(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;
(C) Proceedings are terminated by the immigration judge or the Board of Immigration Appeals;
(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)