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The HHS Poverty Guidelines are how you calculate the level of income that is required by the petitioner when filing a visa petition for a family member. If your income does not meet the requirements then you will need to get a joint sponsor. For more information about the affidavit of support and joint sponsors check out our guide to the Form I-864A.
AOS Statute INA 245(a) Adjustment of Status Eligibility Requirements The applicant must have been: The applicant must properly file an adjustment of status application. The applicant must be physically present in the United States. The applicant must be eligible to receive an immigrant visa. An immigrant visa must be immediately available when the applicant files the adjustment of status application. and at the time of final adjudication. The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. The applicant merits the favorable exercise of discretion. §1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence (a) Status as person admitted for permanent residence on application and eligibility for immigrant visa The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. (b) Record of lawful admission for permanent residence; reduction of preference visas Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 1152 and 1153 of this title within the class to which the alien is chargeable for the fiscal year then current. (c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title,1 (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa. (d) Alien admitted for permanent residence on conditional basis; fiancee or fiance of citizen The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien’s nonimmigrant status under section 1101(a)(15)(K) of this title. (e) Restriction on adjustment of status based on marriages entered while in admissibility or deportation proceedings; bona fide marriage exception (1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien’s status adjusted under subsection (a). (2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien’s right to be admitted or remain in the United States. (3) Paragraph (1) and section 1154(g) of this title shall not apply with respect to a marriage if the alien establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien’s admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 1154(a) of this title or subsection (d) or (p) 2 of section 1184 of this title with respect to the alien spouse or alien son or daughter. In accordance with regulations, there shall be only one level of administrative appellate review for each alien under the previous sentence. (f) Limitation on adjustment of status The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186b
Things can happen to families while the beneficiary of a visa petition is waiting for their priority date to become current. For example, spouses can divorce or die, children may turn 21, children may marry or divorce, or an LPR petitioner may become a citizen. When someone’s family status change results in the principal beneficiary qualifying for a newvisa category, the visa petition is automatically converted into the new visa category. If theinitial visa petition was in a preference category, the priority date remains unchanged. This iscommonly referred to as “retention” of the priority date. If the initial petition was an immediaterelative petition, then the date that petition was filed becomes the priority date in the newpreference visa category. This may result in the beneficiary having a much longer wait in orderto immigrate based on the new preference category, like in the case of a child who gets married and becomes an adult son or daughter. However, in certain circumstances the waitcould get shorter, such as when an LPR petitioner parent naturalizes and their under 21-year-old child goes from being in a preference category to an immediate relative. When a New Petition May Be Required to Recapture a Priority Date Based on the language of the DHS regulations, as well as dicta in the Supreme Court decision in Cuellar de Osorio, there is a reasonable argument that derivative beneficiary children of LPRs who naturalize, automatically convert to immediate relative beneficiaries, without a new petition being filed by their newly naturalized parent. It is clear that the BIA in Matter of Wang overruled one regulation which required a new petition for aged out derivatives moving from the F2A to the F2B category.23Dicta in Cuellar de Osorio also noted that “automatic conversion[s]” never involved new petitioners, and “entailed nothing more than picking up the petition from one category and dropping it into another for which the alien now qualified.” Exceptions to the Revocation of Visa Petitions Widow/er of U.S. Citizen An I-130 visa petition will automatically convert to a widow/er self-petition (I-360) in the event of a US citizen petitioner’s death. A widow/er may also file a Form I-360 self–petition even if no I-130 was ever filed by the U.S. citizen deceased spouse. To qualify, the widow/er must meet the following criteria: • Must file the self-petition within two years of the U.S. citizen spouse’s death (unless an I–130 spouse petition is already on file), • Must prove that the marriage was a good-faith marriage, • There was no divorce or legal separation at the time of the U.S. citizen spouse’s death. The widow/er will be treated as an immediate relative. However, unlike other immediate relative petitions, widow/er petitions may include as derivative beneficiaries any children of the widow/er who were under 21 when the original petition (I-130 or I-360) was filed. Those who qualify for this relief are not subject to the affidavit of support requirement to overcome the public charge ground of inadmissibility INA § 204(I) INA § 204(l) provides relief to several categories of immigrants where the petitioner or principal beneficiary has died and is not limited to cases where the petitioner was a U.S. citizen. It is also not limited to the beneficiaries of family visa petitions. It includes, for example, qualifying derivative beneficiaries of I-140 employment-based petitions, asylum applications and refugee/ asylee derivative petitions, and T or U visa petition derivative beneficiaries. It applies to the beneficiaries of family-based visa petitions where either the petitioner has died, or the principal beneficiary has died, and the petition is still pending or approved. These are the criteria to qualify under INA § 204(l): Humanitarian Reinstatement Humanitarian reinstatement is a completely discretionary remedy for reinstating a petition where a petitioner has died. It applies only to previously approved petitions where the petitioner has died. Derivative beneficiaries are not eligible for this relief when a principal beneficiary has died. To initiate humanitarian reinstatement, the beneficiary must: Impact on Derivatives Some derivative beneficiaries lose out when the principal ages out, marries or divorces. Unless a derivative beneficiary can convert to another preference category when they age out, marry, or divorce, they will lose the priority date of the original petition. The only exception is where the CSPA protects an aged-out beneficiary. The petition itself remains valid as to the principal beneficiary and derivatives who have not lost their status. Automatic Revocation of Visa Petitions Certain circumstances can result in the automatic revocation of a visa petition, including some changes in family status. In such cases, the priority date is lost, though in some limited circumstances where the visa petition can be reinstated or other remedies may exist. Opt-Out Provision When an F2B beneficiary’s LPR parent naturalizes, that beneficiary automatically converts to a first preference immigrant. However, under the CSPA, the beneficiary may opt out of becoming a first preference immigrant and remain in F2B status if the waiting period for first preference exceeds the waiting period for F2B status. Unlike the adjusted age provision of the CSPA, there is no deadline for making the choice between first preference and F2B status. When a New Visa Petition Can Retain/Recapture the Priority Date of a Previously Filed Visa Petition Sometimes a visa petition gets misplaced by USCIS and a new one must be filed, or other circumstances occur that result in the filing of a new visa petition. The rule governing when a priority date can be kept is that the original petition must have been approved, and you must have the same petitioner, the same beneficiary, and the same visa category.50 This phenomenon has sometimes been referred to as “recapturing” the priority date of the original petition, as opposed to “retention” of the priority date, though, as noted above, the two terms are used interchangeably and basically mean the same thing. If the petitioner and beneficiary have proof that the original visa petition was approved, including proof of the priority date, then the new visa petition will have the same priority date
NOTE: If you are the spouse, minor child or parent of a U.S. citizen, then you are an immediate relative so the preference categories do not apply to you. Go here instead. U.S. immigration law allows certain noncitizens who are family members of U.S. citizens and lawful permanent residents to become lawful permanent residents (get a Green Card) based on specific family relationships. Other family members eligible to apply for a Green Card are described in the following family “preference immigrant” categories:
Checklist of Documents to Bring to Your USCIS Interview (I-130 or I-1485) For Marriage-Based Cases For married couples who are preparing to attend their USCIS interview after submitting their Form I-130 Visa Petition and/or Form I-485 Adjustment of Status interview, you can use this checklist to gather supporting documents to bring to your USCIS interview.
Form I-864A: https://www.uscis.gov/sites/default/files/document/forms/i-864a.pdf Official USCIS Instructions: https://www.uscis.gov/sites/default/files/document/forms/i-864ainstr.pdf Why Does a Household Member Complete Form I-864A? A household member completes this contract if the household member’s income and/or assets will be used to demonstrate the sponsor’s ability to meet the income requirements and to maintain the sponsored immigrant at an annual income at the level specified in INA section 213A(f)(l)(E) or section 213A(f)(3). If the Intending Immigrant Is a Household Member, Must He or She Complete This Contract? If you are the intending immigrant and the sponsor is including your income on Form I-864 to meet the eligibility requirements, you need to complete this contract only if you have accompanying dependents. If you are the intending immigrant and the sponsor is including only your assets on Form I-864, you do not need to complete this contract, even if you have accompanying dependents. Filing Fee: There is no filing fee to file Form I-864A with USCIS. Where do I file? This contract MUST be filed with Form I-864. Who completes this form? The sponsor and a household member complete and sign this form. If either the sponsor or the household member is under guardianship, the guardian of that individual’s estate (financial affairs) may sign the form. Principal Immigrant The principal immigrant must submit one original Form I-864 and Form I-864A for his or her file along with supporting financial evidence of the sponsor’s and household member’s income. A Form I-864 or Form I-864A is considered original if it is signed in black ink. The principal immigrant should submit photocopies of the completed Form I-864 and Form I-864A for each of the family members traveling with him or her. Copies of supporting financial documents are not required for the principal immigrant’s family members. Tips on completing Form I-864A SECTION WHAT TO DO Part 1 The household member completes this section. Part 1, Questions 6.a-7 The household member provides his or her Place of Birth and Social Security Number, if you have one. Part 2, Questions 1.a.-1.c. The household member indicates the relationship to the sponsor (or, if appropriate, the joint sponsor or substitute sponsor). Part 3, Questions 1.a.-2.And Part 4, Questions 1-3d The household member provides this employment information and current individual annual income. In the beginning of Part 5 The sponsor (or, if appropriate, a joint sponsor or substitute sponsor) must print their name and the number of intending immigrants being sponsored. This number should include all intending immigrants that were listed in Part 5, Questions 1.a-25 and those listed in Part 9, Additional Information (if any). Part 5 List only the intending immigrants that are being sponsored on Form I-864. Part 5, Questions 31.a.-31.b. The sponsor (or, as appropriate, a joint sponsor or substitute sponsor) must sign and date the form. The signature needs to be original (not a photocopy). Part 6, Questions 6.a-6.c The household member must print, sign and provide the date of signature in black ink. The signature needs to be original (not a photocopy). Supporting Documents Checklist The following items must be submitted with Form I-864A: For ALL sponsors: For SOME sponsors: FREQUENTLY ASKED QUESTIONS How do I calculate my household size? The Form I-864 asks for the financial sponsor’s household size. When calculating their household size, sponsors must include: A sponsor does not have to include people on other I-864s who have not yet immigrated to the United States. Who can be a Financial Sponsor? A financial sponsor, including a petitioner, must be at least 18 years old and either a U.S. citizen or a lawful permanent resident (LPR). The sponsor must also have a domicile (residence) in the United States. What are Poverty Guidelines? Petitioners must meet a minimum income level, called the Federal Poverty Guidelines, in order to financially sponsor a visa applicant. The Poverty Guidelines in effect on the filing date of an Affidavit of Support are used to determine whether the income requirement is met. You can find these guidelines on USCIS’s website. What happens if the petitioner doesn’t have enough income? Petitioners who cannot meet this level have two choices: 1) find a “joint sponsor” who will agree to also financially support the visa applicant, or 2) use the income of a household member to meet the Poverty Guidelines. These additional financial sponsors also have to submit an Affidavit of Support, proof of their income, and proof of their legal status in the United States. Remember: Even if a petitioner finds a joint sponsor or uses the income of a household member to financially sponsor a visa applicant, that petitioner must still submit an Affidavit of Support. Is a sufficient Form I-864 the only consideration for meeting any public charge issues at the time of the visa interview? No, consular officers also look at other public charge factors affecting the financial situation of both the financial sponsor(s) and the applicant. Age, health, education, skills, financial resources and family status of the applicant and the sponsor are factors. If the poverty guidelines change between the time the petitioner signed the Affidavit of Support and the issuance of an immigrant visa, must the petitioner/sponsor and joint sponsor, if required, submit a new Form I-864? No, the Form I-864 remains valid indefinitely unless evidence of failure to meet the poverty guidelines in effect on the date of I-864 filing arises. Can a credible offer of employment for the visa applicant replace or supplement an insufficient Affidavit of Support? No, the law does not recognize offers of employment in place of the Form I-864. A job offer may show ability of the applicant to overcome ineligibility as a public charge, but does not meet any I-864 requirement. How can a sponsor use assets to meet the minimum Federal Poverty Guidelines? If a sponsor’s income does not meet the minimum Federal Poverty Guidelines, he or she can submit the value of assets to make up the difference unless the sponsor is submitting a Form I-864EZ. When looking at income levels, the consular officer will look at the sponsor’s employment income first. Personal
PREFERENCE CATEGORY Second preference (F2B) – unmarried sons and daughters (21 years of age and older) of lawful permanent residents. NUMBER AVAILABLE 23,400 green cards are available each year WHAT TO SUBMIT Note: Certain forms, including Form I-485, have a filing fee. You must submit the correct filing fee for each form, unless you are exempt or eligible for a fee waiver.
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See our blog post on extreme hardship. A. Totality of the Circumstances The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted.1 Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions2 or other U.S. Government determinations regarding country conditions, including a country’s designation for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented. B. Common Consequences The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship.3 The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following: C. Factors Must Be Considered Cumulatively The officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors.5 For example, if a qualifying relative has a medical condition that alone does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances. Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered along with the individual’s specific medical conditions, may create sufficient difficulties as to rise to the level of extreme hardship in combination with all the other consequences. The officer must weigh all factors individually and cumulatively, as follows: First, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances. Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives. When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances. D. Examples of Factors that May Support a Finding of Extreme Hardship The chart below lists factors that an applicant might present and that would be relevant to determining whether an applicant has demonstrated extreme hardship to a qualifying relative. This list is not exhaustive; circumstances that are not on this list may also be relevant to finding extreme hardship. The presence of one or more of the factors below in a particular case does not mean that extreme hardship would necessarily result from a denial of admission. But they are factors that may be encountered and should be considered in their totality and cumulatively in individual cases. All hardship factors presented by the applicant should be considered in the totality of the circumstances in making the extreme hardship determination. Some of the factors listed below apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would relocate abroad. Some of the factors might apply under either circumstance. Family Ties and Impact Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children. Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults. Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required. Social and Cultural Impact Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation. Fear of persecution or societal discrimination. Prior grant of U nonimmigrant status. Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values. Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection. Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability.6 Qualifying relative’s community ties in the United States and in the country of relocation. Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation. Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes. Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate. Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail. Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation. Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation. Economic Impact Economic impact of applicant’s departure on
Fraud & Misrepresentation Ground of Inadmissibility Inadmissibility for fraud or misrepresentation under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018). Willful Misrepresentation Matter of O-M-O-, 28 I&N Dec. 191, 196 (BIA 2021) Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case Materiality of a Statement See Matter of Munroe, 26 I&N Dec. 428, 430 (BIA 2014). Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case Authority to Inquire into Bona Fides of Marriage at Adjustment of Status See MARRIAGE FRAUD for more on this. Matter of Bosuego Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979, 1980) In Matter of Bosuego, the Board concluded that the materiality requirement in former section 212(a)(19) was satisfied if one of the following was true: 1. “The alien is excludable on the true facts”; or 2. “The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he be excluded.” Id. at 127. Matter of Y-L- Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) [PDF version] Matter of D-R- Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) (“Matter of D-R- 2011”) [PDF version] Matter of KAGUMBAS, 28 I&N Dec. 400 (BIA 2021) An Immigration Judge has the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018). FULL DECISION FRAUD/MISREPRESENTATION WAIVER
The I-601A Waiver is for individuals who are inadmissible pursuant to INA §212(a)(9)(B) for unlawful presence. Typically this waiver is for the spouse or child of a US citizen or legal permanent resident (LPR), who entered the US without inspection (usually by crossing the US-Mexico or US-Canada border). Since someone who enters the US without inspection is ineligible for adjustment of status they have to leave the US to attend a consular interview to obtain legal permanent residency. If the person has been unlawfully present in the US for more than six months then they can’t leave the US to attend the visa interview without tripping the three or ten-year unlawful presence bar. The I-601A Waiver, if approved, waives the wait period that the applicant would normally be subject under the unlawful presence bar, allowing them to obtain their visa at the consular interview and reenter the US as a legal permanent resident without having to wait three/ten years outside the country. An I-601A waiver requires that the applicant be the beneficiary of an approved immigrant visa petition that is immediately available to them (petitions for immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees), that they have paid the visa fees, they are otherwise admissible to the United States, they deserve favorable discretion, and they can establish that their qualifying relative will suffer extreme hardship if their application is denied. A qualifying relative for an I-601A waiver can be a US citizen/LPR spouse or US citizen/LPR parent (children are not qualifying relatives). One cannot apply for an I-601A waiver without a qualifying relative. The eligibility details are available below and at the USCIS.gov website. NOTE: The Form I-601 Waiver (without an A) still exists. The original I-601 Waiver does the same thing as an I-601A but it is filed by someone who has already tripped the unlawful presence bar and is outside of the US. Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States. ELIGIBILITY An alien who is inadmissible for unlawful presence in the U.S. under Section 212(a)(9)(B) of the Immigration and Nationality Act (INA), is eligible for a waiver of inadmissibility pursuant to INA §212(a)(9)(B)(v). Eligibility requirements enumerated under 8 CFR 212.7(e) are as follows: (i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver; (ii) Provides biometrics to USCIS at a location in the United States designated by USCIS; (iii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview; (iv) Has a case pending with the Department of State, based on: (A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or (B)Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered; (v) Will depart from the United States to obtain the immigrant visa; and (vi) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act. BURDEN OF PROOF PREPONDERANCE OF THE EVIDENCE STANDARD The Applicant must establish eligibility for a waiver by a preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the standard for immigration benefits generally, in that case naturalization). MORE LIKELY THAN NOT The preponderance of evidence standard requires that the evidence demonstrates that denial of the Applicant’s admission will “more likely than not” result in extreme hardship to the Applicant’s qualifying relative(s). Id. at 376. QUALIFYING RELATIVE The requirements for a waiver provided at section 212(a)(9)(B)(v) of the Act are that he establish to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to a qualifying relative, which is defined as a citizen or resident parent or spouse. Hardship to and Applicant’s USC children must be considered insofar as it results in hardship to any of the qualifying relatives. See Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); *Matter of Monreal,*23 I&N Dec. 56 (BIA 2001). Additionally, hardship to the Applicant’s three USC Children, other family members, members of the community, and the Applicant himself, may serve as favorable factors to be considered in the determination of whether the Secretary should exercise favorable discretion by approving the waiver. See Matter of Mendez, 21 I&N Dec. 296 (BIA 1996). EXTREME HARDSHIP The definition of “extreme hardship,” according to immigration law, is “not . . . fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). Further, in assessing extreme hardship, one “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996). Extreme hardship in the context of an I-601A Provisional Waiver has a significantly lower burden of proof than the exceptional and extremely unusual hardship requirement of cancellation of removal referenced throughout this brief. Extreme hardship in this context must go “beyond that typically associated with deportation.” See 8 CFR 1240.58(b); See also USCIS Policy Manual Volume 9, Part B, Chapter 2. The federal courts and the BIA have frequently relied on cases involving the former suspension of deportation statute when interpreting extreme hardship waiver statutes, as these statutes employed the same language. See Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). The USCIS
9 FAM 102.8-1(I) LEGAL SEPARATIONS AND MARRIAGE TERMINATION (CT:VISA-1774; 05-24-2023) a. An applicant is a “spouse” for visa adjudication purposes, even if the parties to the marriage no longer cohabit, if the marriage was not contracted solely to qualify for immigration benefits. If the parties are legally separated, i.e., by written agreement recognized by a court or by court order, the applicant is no longer a “spouse” for visa adjudication purposes even if the couple has not obtained a divorce. b. If an individual’s prior marriage has been terminated by a separation that is not recognized by the state in which they reside, the individual must first obtain a divorce from the prior spouse to qualify for an IV.
Definition of a Child According to INA 101(b) (1) and 8 U.S.C. 1101(b)(1), a child is defined as: an “unmarried person under 21 years of age who is a: WHAT ABOUT STEP-CHILDREN? Step Child [See INA 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B)]: A step-child is a child as long as the step-child was under 18 when step-relationship was created, meaning that the natural parent and step-parent were married before the child turned 18 years of age: In situations where the natural mother and/or father is an LPR, but the step-parent is a USC, the child can avoid family 2D preference backlog through the step-parent’s petition. Example: Michael is a U.S. citizen and Mary is an alien from France. Mary has a child, named Joe who is younger than 18 years of age, from a previous marriage that she has custody over. Therefore, if Michael and Mary get married before Joe turns 18 years of age, Michael will be able to establish a legal step-parent/child relationship with Joe. When Does a Step-Child Relationship End? Normally, a step-relationship terminates when a marriage ends, especially if it ends in divorce. [Matter of Simicevic, AFM 21.4 (d)(2)(B)] However, under certain circumstances, a step-relationship may continue after the death of the natural parent or even after the legal separation or divorce of the step-parent and the natural parent if there is an ongoing relationship between the step-parent and the step-child. If the marriage ends in annulment, however, the step relationship is deemed to have never existed because, legally, the marriage never existed. [Matter of Pagnerre, Matter of Mowrer, and Matter of Mourillon]. Adopted Child Children adopted before 16, and having 2 years legal custody and residence with adopting parent. However, if the family has already adopted a sibling, the second brother or sister who is adopted may be under 18 at time of adoption. In order for an adopted child to be considered under Immigration Law, the adoption must occur before the child turns 16 years of age, and must be coupled with 2 years of legal custody with the adopting parent and reside with the adopting parent for 2 years. The two year custody and residency requirements may be satisfied before or after the legal custody or adoption, by either parent. Meeting the two year legal custody requirement requires either the final adoption decree or official documentation in the form of a custody award by the court or recognized government entity. This requirement must be satisfied through an official action at a recognized government entity between the natural parent(s) and the adopting parent. Informal documents, such as sworn affidavits, are insufficient. The natural parents of an adopted child cannot obtain immigration benefits through the natural child if the child was adopted in accordance under the provisions listed above. This is different than step-children, however, who can petition for their natural parent. If the adopted child did not and cannot acquire any immigration benefits through the adoptive parents, the natural parents may be able to petition for the child. The adopted child, also, cannot petition for their natural siblings if the child was adopted in accordance to the provisions listed above. However, if the relationship between the adopted parent and the child end, then the custody of the child goes back to the natural parent or to the state/country if the child was an orphan prior to the adoption. The Hague Convention The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption [8 C.F.R. 204.3(k)(2)]: The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption is an international convention dealing with international adoption, child laundering, and child trafficking. The objectives of the convention were to (1) establish safeguards to ensure that inter-country adoptions take place in the best interests of children and with the respect for the child’s fundamental rights; (2) establish a system of co-operation amongst the participating countries to ensure that those safeguard are respected; thus, preventing the abduction, sale of, or traffic of children; and (3) to secure the recognition of the adoptions made in the participating countries in accordance with the convention. The conditions of the Hague Convention apply to adoptions that occur after April 1, 2008.
9 FAM 102.8-1(I) LEGAL SEPARATIONS AND MARRIAGE TERMINATION (CT:VISA-1774; 05-24-2023) a. An applicant is a “spouse” for visa adjudication purposes, even if the parties to the marriage no longer cohabit, if the marriage was not contracted solely to qualify for immigration benefits. If the parties are legally separated, i.e., by written agreement recognized by a court or by court order, the applicant is no longer a “spouse” for visa adjudication purposes even if the couple has not obtained a divorce. b. If an individual’s prior marriage has been terminated by a separation that is not recognized by the state in which they reside, the individual must first obtain a divorce from the prior spouse to qualify for an IV.
Can an individual under the age of 18 be married for immigration purposes? Yes. It will primarily depend on whether the marriage was legal in the place where the marriage took place but there are also public policy concerns. Minor Marriage: Certain underage marriages involving an individual under the age of 18 may be void because of public policy concerns even if the place of celebration recognizes the marriage as valid. (a) Legal thresholds for underage marriage vary state by state. Some states may recognize a marriage performed in another jurisdiction even if state law would not allow the parties to enter a marriage in that state, while other states would not recognize such a marriage because it violates the public policy of the state. In any case where you suspect that a marriage may not be valid in the state where the applicant intends to reside because one or both of the parties are underage or were potentially underage at the time of marriage, you should request an AO from L/CA. (b) Legal thresholds for sexual consent also vary state by state. If you find that the applicant intends to reside in a state where the marital relationship will likely result in the commission of unlawful activity (i.e., statutory rape where there is no exception for marriage), you should request an AO from L/CA to determine if the visa should be refused under INA 212(a)(3)(A)(ii) based on intent to engage in unlawful activity. (c) In the context of IV processing, a minor can successfully petition for a spouse. However, family-based IVs require that the petitioner submit an I-864, Affidavit of Support Under Section 213A of the INA. INA 213A(f)(1)(B) requires that a petitioner must be at least 18 years of age to qualify as a “sponsor” on an I-864. In any case involving a spousal petitioner who is under the age of 18, you should refuse the visa application under INA 212(a)(4)(A) as a public charge as the petitioner cannot properly submit the required I-864. While a joint sponsor may be used in cases in which the petitioner does not meet the income requirement found at INA 213A(f)(1)(E), the age requirement cannot be overcome with a joint sponsor. If the petitioner later reaches age 18 and meets all other requirements, the ineligibility can be overcome. If the petitioner will turn 18 within a year after the initial adjudication, then no additional fee or application is required. If the petitioner will turn 18 more than a year after the initial adjudication, then a new fee and visa application would be required. See 9 FAM 504.11-4 and 9 FAM 601.14. (d) If the petitioner or beneficiary indicates to you that they are being forced to marry against their will, you should reach out to the VO/F post liaison for guidance. The Visa Office works closely with USCIS on cases involving allegations of forced marriage and can provide case-by-case guidance to you while working to protect the confidentiality of the party that disclosed the forced marriage. In instances where you believe the underage applicant is being married against their will, you should conduct a more in-depth interview with the applicant, preferably in a privacy window. You should obtain a statement from the applicant detailing the circumstances of the marriage and their intention and willingness to enter the marriage. Regardless of the desires of the applicant, if you suspect forced marriage, you should send an AO to L/CA for confirmation of the legality of the marriage and potential return of the petition to USCIS on that basis. If a forced marriage case results in a consular return, and if the applicant or beneficiary inquires, you must only communicate that the petition has been returned to USCIS. See also 9 FAM 502.2-1(E) on IV forced marriages; 9 FAM 502.7-3(C)(5) on forced K visa relationships; and guidance on writing petition revocation memoranda with information not to be released to the petitioner at 9 FAM 504.2-8(B)(4), 9 FAM 601.13-2(E).
9 FAM 102.8-1(D) PROXY MARRIAGES (CT:VISA-1774; 05-24-2023) A marriage where one or both parties was not present (proxy marriage) is not valid unless the marriage was consummated. (1) Consummated: For the purpose of issuing a visa to a “spouse,” a proxy marriage that has been subsequently consummated is valid as of the date of the proxy ceremony. A proxy marriage consummated before the proxy ceremony is not a marriage for visa adjudication purposes unless it has been consummated subsequently. (2) Unconsummated: A proxy marriage that has not been subsequently consummated does not create or confer the status of “spouse” pursuant to INA 101(a)(35). For IV cases, a party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancé(e). A proxy marriage celebrated in a jurisdiction recognizing such marriages is generally valid another marriage in the United States is not necessary if the applicant is admitted to the United States under INA provisions other than as a spouse. See 9 FAM 502.7-3(B) for additional information on fiancé classifications.
