Selected Issues on Citizenship and Immigration Law: Family Based Immigration Thursday May 19, 2011 1:30 p.m. – 2:30 p.m. EST

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Patricia Wonder Partner, Johnson Wonder PLLC Instructor, CUNY School of Professional Studies Partner, Johnson Wonder PLLC

Our Panel of Presenters Barbara J. Brandes, Senior and Managing Attorney, Brandes & Associates Adam Cohen, Esq., Solo Practioner

www.cuny.edu/citizenshipnow www.sps.cuny.edu

Immigration Law Studies Advanced Graduate Certificate Program Courses Introduction to Immigration Law Business Immigration Law Family-Based Immigration Law Proceedings in Immigration Court Naturalization and Citizenship

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Volunteer with the CUNY/NYC Citizenship Now! Corps Complete a registration form at www.cuny.edu/citizenshipnow/volunteer

Family Based Immigration

Qualifying for Family-Based Immigration Adam Cohen, Esq. How can family members sponsor each other for permanent residence? There are specific family preference categories under which a lawful permanent resident (LPR) or U.S. citizen can sponsor a child, parent, sibling, or son or daughter over the age of 21.

Definition of “child” Defined in INA § 101(b)(1). A child is one who is either: Child born in wedlock. Step-child under 18 years when step relationship was created. Illegitimate child legitimated before 18 years of age (father must show a relationship before 21st birthday). Child born out of wedlock (father must show a relationship before 21st birthday). Orphan child adopted before 16 (and must have had 2 years of legal custody and residence with adopting parents before or after legal custody or adoption). Barbara Brandes

Ways to Legitimate an Illegitimate Child Barbara Brandes Marriage of natural parents. Judicial decree. Formal declaration of paternity. Note: where a country has abolished the distinction between legitimate and illegitimate children, all children are considered legitimate.

Adoption Before child is 16 plus two years of legal custody. Residing with parents two years before or after legal custody or adoption. If continue to reside with parents must show primary parental control. Natural parents cannot obtain immigration benefits. Special adoption rules for orphans: Orphaned by death, disappearance, abandonment, desertion, separation or loss of both parents. If one parent is alive must show they are incapable of providing proper care and irrevocably in writing release child. Barbara Brandes

Parents - INA § 101(b)(2) Adam Cohen, Esq. Parent, father or mother established by definition of child. To decide whether someone is a parent (father or mother) under immigration law, USCIS refers to the definition of child under INA § 101(b)(1). Only U.S. citizens 21 years or older may petition for parents. Step-children can petition for parents as long as the step-parent relationship was formed before the child’s 18th birthday. A stepparent-stepchild relationship may continue after divorce.

Siblings Adam Cohen, Esq. Must meet the definition of a child of at least one common parent. Note: LPRs cannot sponsor siblings. A U.S. citizen may petition for natural & step parents, stepchildren, or stepsiblings.

Can Jeff sponsor all three of Tina’s children? Poll Question Jeff, a U.S. citizen, married Tina in 2006 when her son Lawrence was 22, son Robert was 17, and daughter Suzie was 12.  All are Jamaican nationals. Can Jeff sponsor all three of Tina’s children?

Preference Categories Barbara Brandes What are the categories for sponsoring a family member? Family preference petitions include petitions for “immediate relatives” of U.S. citizens and certain relatives of U.S. citizens and lawful permanent residents.

USCIS Considers Some Family Members to be “Immediate Relatives” Immediate Relatives include parents, spouse, unmarried children under 21 years old of U.S. citizens. INA § § 101(b)(1), 201(b)(2)(A)(i). Immediate Relative petitions are not part of the overall cap on immigration and are not subject to “preference categories,” meaning that immigrant visas are “immediately” available to the beneficiary. Beneficiaries of Immediate Relative petitions cannot add derivative beneficiaries to their application. For example, the spouse of a U.S. citizen cannot include her children within her own petition; the U.S. citizen sponsor must file a separate I-130 for each derivative, where possible. Barbara Brandes

Other Family Members Fall Under “Family Preference” Categories The preference system allocates a fixed number of immigrant visas to certain categories of family-based I-130 petitions. Family preference categories include the following: F1 unmarried sons and daughters of U.S. citizens; F2A spouses and unmarried children under 21 of LPRs; F2B unmarried sons and daughters of LPRs; F3 married sons and daughters of U.S. citizens; F4 brothers and sisters of U.S. citizens. Immigrant visa availability for preference categories is restricted annually to 480,000 visas less the immediate relative visas, with a floor of 226,000 visas. Derivative beneficiaries are allowed under preference applications. Adam Cohen, Esq.

Priority Dates Adam Cohen, Esq. A “priority date” refers to the date the family-based preference petition was filed. The order of visa availability is based on the priority date. Priority dates of available visas are updated monthly in the “Visa Bulletin” which is published by the Department of State.

Visa Bulletin Barbara Brandes The monthly Visa Bulletin lists “cut-off” dates for each preference category in the area of “chargeability.” A beneficiary’s priority date must be on or earlier than the cut-off date in order for an immigrant visa to be available to the beneficiary.

The Current Visa Bulletin May 2011 Adam Cohen, Esq. http://travel.state.gov/visa/bulletin/bulletin_1360.html

Is Melinda's priority date current? Poll Question Melinda is a 34 year old, unmarried national of the Philippines, where she still lives. Her father, Tomas, an LPR, filed an I-130 petition for her on May 21, 2000, which was approved. Is Melinda's priority date current?

Chargeability and Cross-charging Adam Cohen, Esq. Foreign state chargeability refers to the country’s quota to which a beneficiary’s immigrant visa gets charged. Only 7% of the total available family-based immigrant visas are available to each country. Chargeability is based on the beneficiary’s country of birth. Cross-chargeability: Where the immigrant visa is unavailable for the primary beneficiary, the country of birth of a derivative beneficiary may be charged instead.

Conversion of Preference Petitions Adam Cohen, Esq. When the beneficiary’s qualifications for a preference category change, the beneficiary’s petition converts to a new category. For example, if the LPR sponsor of an F2A spouse or child becomes a U.S. citizen, the petition converts to an immediate relative. Conversely, where the unmarried son or daughter of a U.S. citizen marries (F1), the petition coverts to an F3. Petitions that convert retain their original priority date.

Can Raphael apply for permanent residence? POLL QUESTION In August 2010, Laure, a lawful permanent resident, filed an I-130 for her spouse, Raphael, who is lawfully in the U.S. on a student visa. In May 2011, Laure became a naturalized U.S. citizen. Can Raphael apply for permanent residence?

Child Status Protection Act (CSPA) Barbara Brandes In certain situations, a child can “age-out” of a preference category or of being considered a derivative beneficiary when that child turns 21. The CSPA can be used to help prevent a child’s application from “aging-out” when he/she turns 21 by freezing the child’s age or “recapturing” the time it took for a priority date to become current.

U.S. Citizens and LPRs can File an I-130 Petition File for a relative using form I-130. Filing fee is currently $420. Link to the form : http://www.uscis.gov/files/form/ i-130.pdf File at the Chicago Lockbox (see instructions for slight address change for concurrent filing with I-485) Include evidence to establish family relationship (i.e., appropriate certificates). Adam Cohen, Esq.

Effect of the Death of Petitioner (INA § 204(e)) Prior to recent changes in the law, the death of a petitioner automatically revoked the petition. Now, a petition is not automatically revoked and USCIS may continue adjudication for persons residing in the United States. For persons residing outside the United States, the petition is automatically revoked on the death of the petitioner, but USCIS can grant humanitarian reinstatement under 8 C.F.R. § 205.1(a)(3)(i)(C)(2). Barbara Brandes

Western hemisphere priority date Barbara Brandes If parents or step-parents immigrated before 1/1/1977 –their sons and daughters can immigrate and can pick up the original priority date for any subsequently filed relative or employment-based petition.

Q&A: Our Panel of Presenters Patricia Wonder Instructor, CUNY School of Professional Studies and Partner, Johnson Wonder PLLC Barbara J. Brandes, Senior and Managing Attorney, Brandes & Associates Adam Cohen, Esq., Solo Practioner

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Acknowledgements Paul Russo Director of Online Programs CUNY School of Professional Studies Antonia Levy Instructional Technology Fellow CUNY School of Professional Studies Allan Wernick Director CUNY Citizenship Now! A. Sofia Carreño Communications Coordinator CUNY Citizenship Now! David Sturniolo Communications Assistant CUNY Citizenship Now! Gabriel Espinal Communications Assistant CUNY Citizenship Now!

Patricia Wonder patriciawonder@johnsonwonder.com For further questions regarding the information presented during this webinar please contact Patricia Wonder patriciawonder@johnsonwonder.com