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ILRC.PracticalStrategies.5.qxp_Layout 2 1/23/17 1:37 PM Page 1

Family-Based Immigration and Executive Actions

Practical Strategies for Immigration Relief:
In light of the continued failure of the U.S. blueprint for future immigration policy and
Congress to pass meaningful immigration reform legislation. Many programs mentioned in this
and the continued dysfunction of our immigration manual, such as parole, DACA, and the enforcement
system, President Obama announced a series of priorities, are in flux, particularly after the 2016
immigration policy changes though executive election. We therefore invite you to visit the
action during his presidency. This manual discusses Immigrant Legal Resource Center’s website at

Practical Strategies
the law, policy, and practice regarding the parts www.ilrc.org for updates and to join our education
of President Obama’s executive action that have listserv by subscribing at www.ilrc.org/subscribe
been implemented as of the time of this writing. to receive email messages about updates to this

for Immigration
These new changes, even if short-lived, can help manual as well as in-person and webinar trainings
many. They can provide individuals with much- opportunities related to immigration executive
needed immigration relief, and also provide a actions.

Relief: Family-Based
Immigration and
Executive Actions

1st Edition
1st Edition
1663 MISSION STREET SUITE 602 By Immigrant Legal Resource Center, Catholic Legal Immigration Network, Inc.,
SAN FRANCISCO, CA 94103 and National Council of La Raza
T 415.255.9499 / F 415.255.9792
WWW.ILRC.ORG
Practical Strategies for
Immigration Relief:
Family-Based Immigration
and Executive Actions
1st Edition
By Immigrant Legal Resource Center, Catholic Legal Immigration Network, Inc.,
and National Council of La Raza

The Immigrant Legal Resource Center

Copyright 2017

A
Immigrant Legal Resource Center
1663 Mission Street, Suite 602
San Francisco, CA 94103
(415) 255-9499
www.ilrc.org
The Immigrant Legal Resource Center (ILRC) is a
national, nonprofit resource center that provides legal
trainings, educational materials, and advocacy to advance
immigrant rights.
Since 1979, the mission of the ILRC is to work with and
educate immigrants, community organizations, and the
legal sector to continue to build a democratic society that
values diversity and the rights of all people.
WHAT WE DO
Legal Professionals & Advocates
 Trainings: Throughout the year, the ILRC staff
attorneys provide classroom seminars and
webinars on a wide range of topics that affect the
immigrant community.
 Publications: ILRC publishes some of the top
reference manuals on immigration law.
 Technical Assistance: Our unique, nation-wide consultation service called the Attorney of the Day
(AOD) provides legal assistance to attorneys, staff of nonprofit organizations, public defenders, and
others assisting immigrants.
Immigrants
 Community Advocacy: ILRC assists immigrant groups in understanding immigration law and the
democratic process in the United States, so as to enable them to advocate for better policies in
immigration law, as well as in health care, community safety, and other issues that affect the
immigrant community.
 Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their
communities.
 Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings
with immigrant-based organizations to inform immigrants about their rights under the immigration
laws and the United States Constitution, how to protect themselves from becoming victims of
immigration fraud, changes in immigration law and policy, and a host of other issues that affect the
lives of immigrants.
Laws, Policies & Practice
 Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration
law, and keep abreast of the frequent changes in immigration case law and policy so that we can
inform our constituents of those changes as soon as they occur.
 Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the
community agency representatives to help ensure that government policies and procedures are
more reasonable and fair, and to make sure that information about these policies is provided to the
immigrant advocacy community in a timely manner.
 Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of
a system that will recognize the contributions immigrants make to our society, respect their dignity,
and insure a workable, secure, and humane immigration system.
How to Contact Us
 General inquiries: ilrc@ilrc.org
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 Website: www.ilrc.org
How to Support Our Work
Please visit our website www.ilrc.org to make a tax-deductible contribution.
 PREFACE AND ACKNOWLEDGMENTS

Given the continued dysfunction of our immigration system, the immigrants’ rights community
has become increasingly creative and strategic in finding ways to allow family members to
reunite or remain together in the United States. Former President Obama’s executive actions
emerged as a powerful tool in this fight to keep families together. These executive actions
provided new ways for immigrants to become eligible for temporary protection as well as
expanded eligibility for family-based immigration. This manual discusses the law, policy, and
practice regarding the parts of former President Obama’s executive action that have been
implemented as of the time of this writing.

Many programs mentioned in this manual, such as parole, DACA, and the enforcement priorities,
are in flux, particularly after the 2016 election. At the time this manual went to press, President
Trump had begun issuing executive orders of his own on immigration, with potentially more to
follow. We therefore invite you to visit the Immigrant Legal Resource Center’s website at
www.ilrc.org for updates and to join our education listserv by subscribing at
www.ilrc.org/subscribe to receive email messages about updates to this manual as well as in-
person and webinar trainings opportunities related to immigration executive actions.

We wish to thank the National Council of La Raza (NCLR), and specifically Charles Kamasaki
and Laura Vazquez, for their leadership on these issues, their guidance during the writing of this
manual, and their input on the content. We are also grateful for the partnership and contributions
of Catholic Legal Immigration Network, Inc. (CLINIC). In particular, we would like to thank
Charles Wheeler, Michelle Mendez, and Susan Schreiber. This manual would not have been
possible without the support and contributions of NCLR and CLINIC.

Thank you also to our wonderful colleagues at the ILRC who helped to create this new manual.
We are grateful to Eric Cohen, Allison Davenport, Lena Graber, Nikki Marquez, Erin Quinn,
Sally Kinoshita, and former ILRC attorney Aidin Castillo, who wrote, edited, and updated
chapters of this manual, often more than once to keep up with the evolving law in this area.
Thank you to our Publication and Program Coordinator Timothy Sheehan who so patiently made
sure all of the details were in place to create this manual.

Alison Kamhi
Staff Attorney
Immigrant Legal Resource Center
January 19, 2017
=
 Practical Strategies for Immigration Relief: Family-Based Immigration and Executive Actions
December 2016

PRACTICAL STRATEGIES FOR IMMIGRATION RELIEF: FAMILY-BASED

IMMIGRATION AND EXECUTIVE ACTIONS
1ST EDITION

TABLE OF CONTENTS

Chapter 1 Introduction

§ 1.1 Introduction ........................................................................................................ 1-1

§ 1.2 Overview ............................................................................................................ 1-1
§ 1.3 About This Manual............................................................................................. 1-4

Chapter 2 Family Visas: Qualifying Family Relationships, Eligibility for Visas, and
Application Process

§ 2.1 Overview of the Family Immigration Process: A Two-Step Process................. 2-1

§ 2.2 The Immediate Relative Category and the Definition of “Child” and
“Spouse” ............................................................................................................. 2-5
§ 2.3 K Visa............................................................................................................... 2-10
§ 2.4 Petitions under the Preference System: Definition of Siblings and Sons
and Daughters ................................................................................................... 2-13
§ 2.5 The Preference Categories................................................................................ 2-14
§ 2.6 Derivative Beneficiaries ................................................................................... 2-18
§ 2.7 The Preference System ..................................................................................... 2-20
§ 2.8 Using the State Department Visa Bulletin to Make an Estimate of
When Your Client Can Immigrate ................................................................... 2-21
§ 2.9 Advising Your Client about When a Visa May Become Available ................. 2-27
§ 2.10 Child Status Protection Act (CSPA) ................................................................ 2-28
§ 2.11 Completing Government Forms ....................................................................... 2-35
§ 2.12 Completing the Visa Petition, Form I-130 ....................................................... 2-36
§ 2.13 The G-325A and Photograph: Required in a Petition for a Husband or
Wife .................................................................................................................. 2-42
§ 2.14 Documenting the Visa Petition......................................................................... 2-43
§ 2.15 Documents to Prove Family Relationship? ...................................................... 2-43
§ 2.16 Making Proper Copies of Documents .............................................................. 2-46
§ 2.17 Making Certified Translations of Documents .................................................. 2-47
§ 2.18 Documenting the Immigration Status of the Petitioner .................................... 2-48
§ 2.19 Filing the I-130 Packet ..................................................................................... 2-49
§ 2.20 When Is a Visa Petition Terminated or No Longer Valid? .............................. 2-49

Appendix 2-A Answers to Exercises

Appendix 2-B Sample Forms I-130 and G-325A
Appendix 2-C Sample I-94s
Appendix 2-D Step-by-Step Guide to Completing FOIA Requests

Table of Contents 1
Immigrant Legal Resource Center
December 2016

Chapter 3 Family Visas: Adjustment of Status and Conditional Residence

§ 3.1 What Is Adjustment of Status? ........................................................................... 3-2

§ 3.2 Understanding 245(a) and 245(i) Adjustment .................................................... 3-2
§ 3.3 INA § 245(a): Adjustment of Status for Persons Who Entered the
United States after Being Inspected and Admitted, or Paroled .......................... 3-3
§ 3.4 INA § 245(i): Adjustment of Status for Persons Who Did Not Enter
the United States with Inspection or Face INA § 245(c) Bars ........................... 3-4
§ 3.5 Adjustment and Admissibility ............................................................................ 3-9
§ 3.6 Should Your Client Adjust or Consular Process? ............................................ 3-17
§ 3.7 What Forms and Documents Are Needed to Apply for Adjustment
of Status? .......................................................................................................... 3-18
§ 3.8 The Application for Adjustment, Form I-485 .................................................. 3-20
§ 3.9 Form G-325A, Fingerprints, Photos, and Medical Exam ................................. 3-21
§ 3.10 Submitting the Adjustment Application ........................................................... 3-22
§ 3.11 The Effect of Leaving the Country................................................................... 3-23
§ 3.12 The Adjustment Interview ................................................................................ 3-23
§ 3.13 The Decision: Approvals and Denials .............................................................. 3-26
§ 3.14 Conditional Residence...................................................................................... 3-28
§ 3.15 Removal of the Condition on Residency if the Marriage Still Exists
after Two Years: The I-751 “Joint Petition” .................................................... 3-30
§ 3.16 When to File the I-751 Joint Petition ............................................................... 3-30
§ 3.17 Completing the I-751 Joint Petition ................................................................. 3-32
§ 3.18 Application Procedure: Filing, Interview, Standard for
Approval, Denials............................................................................................. 3-32
§ 3.19 Termination of Conditional Residency by USCIS during the
“Testing Period” ............................................................................................... 3-35
§ 3.20 Waivers of the I-751 Joint Filing Requirement ................................................ 3-36
§ 3.21 When to File ..................................................................................................... 3-37
§ 3.22 How to File a Waiver ....................................................................................... 3-37
§ 3.23 The “Good Faith” Waiver ................................................................................ 3-38
§ 3.24 The Extreme Hardship Waiver ......................................................................... 3-39
§ 3.25 The Battery or Extreme Cruelty Waiver .......................................................... 3-39
§ 3.26 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse
Has Died ........................................................................................................... 3-40
§ 3.27 Dependent Sons and Daughters ........................................................................ 3-40
§ 3.28 Special Situations Involving Conditional Residency and Waivers .................. 3-41

Chapter 4 Consular Processing

§ 4.1 The NVC, the U.S. Consulates and the Department of State ............................. 4-2
§ 4.2 How DHS and the State Department Divide Responsibility
in Visa Cases ...................................................................................................... 4-2
§ 4.3 Initial Consular Processing at the NVC ............................................................. 4-3
§ 4.4 Obtaining Documents According to NVC Instructions and the FAM ............... 4-8

Table of Contents 2
 Practical Strategies for Immigration Relief: Family-Based Immigration and Executive Actions
December 2016

§ 4.5 Getting Ready for the Interview ....................................................................... 4-10

§ 4.6 What Will Happen at the Interview? ................................................................ 4-12
§ 4.7 What Happens after the Immigrant Visa Is Granted ........................................ 4-15
§ 4.8 What to Do if Your Alien Registration Card Fails to Arrive ........................... 4-16
§ 4.9 Waivers of Grounds of Inadmissibility ............................................................ 4-16

Appendix 4-A NVC Cover Letter and Invoices

Appendix 4-B NVC Document Cover Sheet and Payment Receipt Notices
Appendix 4-C Answers to Exercises

Chapter 5 Unlawful Presence Waivers

§ 5.1 Overview of Unlawful Presence......................................................................... 5-1

§ 5.2 Unlawful Presence and Exceptions .................................................................... 5-2
§ 5.3 Triggering the Unlawful Presence Ground of Inadmissibility ........................... 5-4
§ 5.4 When an I-601 Waiver Is Required .................................................................... 5-7
§ 5.5 Eligibility Requirements for an I-601A Provisional Waiver .............................. 5-8
§ 5.6 Approved Visa Petition Requirement................................................................. 5-9
§ 5.7 Qualifying Relatives ......................................................................................... 5-12
§ 5.8 Extreme Hardship ............................................................................................. 5-12
§ 5.9 Provisional Waiver and Other Grounds of Inadmissibility .............................. 5-13
§ 5.10 Prior Removals and Proceedings ...................................................................... 5-13
§ 5.11 Approvals and Denials ..................................................................................... 5-15
§ 5.12 How to Apply for an I-601A Waiver ............................................................... 5-15
§ 5.13 What Is Extreme Hardship ............................................................................... 5-15

Chapter 6 Parole-in-Place

§ 6.1 What Is Parole? .................................................................................................. 6-1

§ 6.2 Overview of Parole-in-Place .............................................................................. 6-2
§ 6.3 Eligibility Requirements for Parole-in-Place ..................................................... 6-4
§ 6.4 The Benefits of Parole-in-Place ......................................................................... 6-5
§ 6.5 Impact on DACA-Eligible Persons .................................................................... 6-7
§ 6.6 How to Apply for Parole-in-Place ...................................................................... 6-8

Appendix 6-A USCIS, ICE, CBP, Memorandum of Agreement Between USCIS, ICE,
and CBP (Sep. 29, 2008)
Appendix 6-B USCIS, Parole of Spouses, Children and Parents of Active Duty
Members of the U.S. Armed Forces, the Selected Reserve of the Ready
Reserve, and Former Members of the U.S. Armed Forces or Selected
Reserve of the Ready Reserve, (Nov. 15, 2013)
Appendix 6-C DHS, Families of U.S. Armed Forces Members and Enlistees, (Nov. 20,
2014)

Table of Contents 3
Immigrant Legal Resource Center
December 2016

Appendix 6-D USCIS, Discretionary Options for Designated Spouses, Parents, and
Sons and Daughters of Certain Military Personnel, Veterans, and
Enlistees (Nov. 23, 2016)

Chapter 7 Summary of DACA Eligibility Requirements

§ 7.1 Introduction ........................................................................................................ 7-1

§ 7.2 What Is Deferred Action for Childhood Arrivals (DACA)? .............................. 7-1
§ 7.3 Who Qualifies for DACA? ................................................................................. 7-5
§ 7.4 Ineligibility Due to Criminal Conduct or Being a Threat to National
Security or Public Safety .................................................................................... 7-6

Chapter 8 Advance Parole and Travel

§ 8.1 What Is Advance Parole? ................................................................................... 8-1

§ 8.2 Requesting Advance Parole as a DACA Recipient ............................................ 8-2
§ 8.3 Risks of Traveling Abroad for DACA Recipients ............................................. 8-4
§ 8.4 Advance Parole and Adjustment of Status ......................................................... 8-8

Chapter 9 Screening for Other Immigration Relief

§ 9.1 Introduction ........................................................................................................ 9-1

§ 9.2 Self-Petitioning Visas for Battered or Abused Family Members of
U.S. Citizens or Lawful Permanent Residents ................................................... 9-2
§ 9.3 The U Visa ......................................................................................................... 9-6
§ 9.4 The T Visa .......................................................................................................... 9-9
§ 9.5 Asylum and Restriction on Removal................................................................ 9-12
§ 9.6 Special Immigrant Juvenile Status ................................................................... 9-13
§ 9.7 Cancellation of Removal for Non-Permanent Residents.................................. 9-13
§ 9.8 NACARA ......................................................................................................... 9-15
§ 9.9 Cancellation of Removal for Certain Permanent Residents ............................. 9-16
§ 9.10 Temporary Protected Status (TPS) ................................................................... 9-17
§ 9.11 Diversity Visas ................................................................................................. 9-18
§ 9.12 Prosecutorial Discretion and Deferred Action ................................................. 9-18
§ 9.13 Motions to Suppress and Challenging Removability ....................................... 9-21
§ 9.14 Voluntary Departure ......................................................................................... 9-22
§ 9.15 Private Bills Passed by Congress ..................................................................... 9-25
§ 9.16 Other Immigration Remedies ........................................................................... 9-26

Appendix 9-A Client Intake Form and Notes

Chapter 10 Immigration Enforcement Priorities

§ 10.1 Executive Action on Enforcement ................................................................... 10-1

§ 10.2 DHS Enforcement Priorities ............................................................................. 10-1

Table of Contents 4
 Practical Strategies for Immigration Relief: Family-Based Immigration and Executive Actions

Chapter 1
December 2016

CHAPTER 1

INTRODUCTION

This chapter includes:

§ 1.1 Introduction ........................................................................................................ 1-1

§ 1.2 Overview ............................................................................................................ 1-1
§ 1.3 About This Manual............................................................................................. 1-4

§ 1.1 Introduction

In light of the continued failure of the U.S. Congress to pass meaningful immigration reform and
the continued dysfunction of our immigration system, former President Obama announced a
series of immigration policy changes though executive action during his presidency. The use of
executive action to implement immigration policy is by no means new. Every President since
Eisenhower issued an executive action on immigration in some capacity. 1 Nevertheless, the
breadth and impact of the changes President Obama sought to implement were unprecedented. As
of January 2017, some of the changes outlined by the 2014 executive action have been
implemented; others have been blocked indefinitely. Even the policies that have been enacted
may be vulnerable to change. Those that were enacted by executive action only can be changed or
canceled by the new administration; those implemented by regulation could be changed, but only
under the processes outlined by the Administrative Procedures Act. All immigration law evolves;
the law covered in this manual only more so.

This manual seeks to explain the parts of former President Obama’s executive action that have
been implemented as of the time of this writing. These new changes, even if short-lived, can help
many. They can provide individuals with much-needed immigration relief, and also provide a
blueprint for future immigration policy and legislation.

§ 1.2 Overview

On November 20, 2014, former President Obama announced a series of changes that his
administration would undertake to modify immigration policy. The Department of Homeland
Security (DHS) issued twelve memoranda to make changes to immigration enforcement
priorities, Secure Communities, Deferred Action for Childhood Arrivals, deferred action,
provisional waivers, advance parole, parole-in-place, and more. In general, the reforms fall into
three categories: (i) changes to immigration enforcement policy; (ii) deferred action expansion;
and (iii) changes to our legal immigration system.

1
Charles Kamasaki, “Critics Say Executive Action on Immigration Would Be Unprecedented. They Forget
their History,” The Atlantic (Oct. 1, 2014), available at www.theatlantic.com/politics/archive/2014/10/critic
s-say-executive-action-on-immigration-would-be-unprecedented-they-forget-their-history/431352/.

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 Immigrant Legal Resource Center
Chapter 1

December 2016

Changes to Immigration Enforcement Policy. DHS restructured its immigration enforcement

priorities, directing all of its agencies (including Immigration and Customs Enforcement,
Citizenship and Immigration Services, and Customs and Border Protection) to focus attention on
national security threats, immigrants with certain criminal convictions, and recent unlawful
entrants. 2 DHS replaced the controversial Secure Communities program with the new Prioritized
Enforcement Program. 3 This new program facilitates cooperation among federal, state, and local
law enforcement with the stated goal to focus on convicted criminals. Additionally, DHS further
strengthened its approach to border security, adding personnel at the southern border and
developing three new inter-agency task forces to coordinate their efforts. 4

Deferred Action Expansion. Recognizing the need to address the millions of unauthorized
immigrants who currently live in the United States without access to lawful status, the President
authorized DHS to expand its use of deferred action. This expansion sought to take two forms, the
expansion of the current Deferred Action for Childhood Arrivals (DACA) program, and the
creation of a new deferred action program, Deferred Action for Parents of Americans and Lawful
Permanent Residents (DAPA). In broad strokes, the expanded DACA program was for people
who came to the United States before age 16, lived here since January 1, 2010, and met certain
educational and criminal background requirements. 5 DAPA was for people who as of November
20, 2014 had U.S. citizen or lawful permanent resident (green-card holders) children, lived in the
United States since January 1, 2010, and were not enforcement priorities. 6

Unfortunately, both of these programs were blocked by federal litigation, 7 and at the time of this
manual’s writing, remain indefinitely suspended. Although these were the two biggest, and
boldest, parts of the 2014 Executive Action, they were by no means the only parts. This manual
focuses on the other parts of the executive action that did take effect, and the ways in which they
impact immigrants in the United States. In addition, the original DACA program as enacted in
2012 remains, at least for now; this manual also covers existing DACA and advance parole
options for DACA recipients.

Deferred action under any program does not confer legal status, nor a path to permanent
residency. As such, it was never intended to be a permanent solution for the millions of
unauthorized immigrants living in limbo in the United States. It may also cease to exist under a
new presidential administration; the executive branch may modify or terminate the DACA

2
DHS, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants, (Nov. 20,
2014), available at
www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.
3
DHS, Secure Communities, (Nov. 20, 2014), available at www.dhs.gov/sites/default/files/publications/14_
1120_memo_secure_communities.pdf.
4
DHS, Southern Border and Approaches Campaign, (Nov. 20, 2014), available at
www.dhs.gov/sites/default/files/publications/14_1120_memo_southern_border_campaign_plan.pdf.
5
DHS, Exercising Prosecutorial Discretion with Respect to Certain Individuals who Came to the United
States as Children and with Respect to Certain Individuals who are Parents of U.S. Citizens or Permanent
Residents, (Nov. 20, 2014), available at www.dhs.gov/sites/default/files/publications/14_1120_memo_defe
rred_action.pdf.
6
Id.
7
United States v. Texas, 579 U.S. ___; 136 S.Ct. 2271 (2016).

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 Practical Strategies for Immigration Relief: Family-Based Immigration and Executive Actions

Chapter 1
December 2016

program at any time. Because of this, advocates should keep up-to-date on the current deferred
action policies and practices, and always ensure that they are screening their clients for more
permanent forms of relief as well.

Changes to Our Legal Immigration System. The President’s executive action on immigration
reform also made numerous changes to existing processes within the legal immigration system.
These changes include a directive to expand the eligibility for provisional waivers, parole-in-
place, and advance parole; calls to modernize and streamline the visa processing system, such as
proposed changes to employment-based visas; and efforts to encourage and increase access to
naturalization. The expansions of provisional waivers and parole opportunities warrant particular
attention given the ways they could reduce some of the obstacles unauthorized immigrants face in
obtaining lawful status.

Under current law, certain unauthorized family members living in the United States who are
eligible for a family-based immigrant visa must leave to be interviewed and processed at U.S.
consulates in their home countries. A provisional waiver provides certain family members in the
United States the ability to apply to waive their unlawful presence in the United States before
they leave to consular process. The opportunity to apply for the waiver from within the United
States reduces the amount of time that the family members have to spend outside of the country
and decreases the risk they will be unable to return. U.S. Citizenship and Immigration Services
(USCIS) expanded the family members eligible for the provisional waiver process, previously
limited to spouses and children of U.S. citizens, to include spouses and minor children of LPRs
and adult children of U.S citizens and LPRs. USCIS also issued guidance on how it interprets the
hardship waiver criteria. 8

A grant of parole-in-place can allow an unauthorized immigrant to adjust status to permanent

residency, and thus avoid the need to depart the country to consular process, if the person is
otherwise eligible. Parole-in-place is a highly discretionary opportunity used to benefit family
members of current and previous U.S. military members. The executive action directs DHS to
consider expanding eligibility for parole-in-place to family members of people seeking to enlist in
the U.S. military as well, and to explore granting deferred action to family members of U.S.
military members who have overstayed their visas. 9

Advance parole is a discretionary grant of permission for someone living in the United States in
temporary status to travel abroad without losing her temporary status. The Board of Immigration
Appeals (BIA) has held that an adjustment applicant who leaves the United States pursuant to
advance parole has not made a “departure” for purposes of triggering certain unlawful presence
inadmissibility grounds that ordinarily apply when someone departs after living here
unlawfully. 10 DHS asked its general counsel to provide legal guidance clarifying that anyone
leaving the country on advance parole will not trigger these unlawful presence bars. DHS directed

8
DHS, Expansion of the Provisional Waiver Program, (Nov. 20, 2014), available at www.dhs.gov/sites/def
ault/files/publications/14_1120_memo_i601a_waiver.pdf.
9
DHS, Families of U.S. Armed Forces Members and Enlistees, (Nov. 20, 2014), available at
www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf.
10
Matter of Arrabally, Yerabelly, 25 I&N Dec. 771 (BIA 2012).

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 Immigrant Legal Resource Center
Chapter 1

December 2016

its agencies to apply this policy (once issued) to all noncitizens, not just adjustment applicants,
who leave pursuant to advance parole. 11

§ 1.3 About This Manual

This manual is intended as a practical guide to understand the implemented parts of the 2014
executive action. This manual is designed for attorneys, advocates, paralegals and other staff at
nonprofit organizations, government agencies, and other organizations who serve immigrant
communities. The manual is divided into ten chapters and three parts, as follows:

Part 1: Strategies for Family-Based Immigration Using the 2014 Immigration Executive
Action

Chapters 2 through 6 discuss the effects of the 2014 executive action to expand eligibility for
family-based immigration. Family-based immigration is the most common way for people to gain
immigration status in the United States, and the changes implemented by executive action expand
this eligibility further. Chapter 2 provides an overview of family-based immigration, including
explanations of the preference system, the Child Status Protection Act, the visa petitioning
process, how to fill out the necessary forms and obtain the required documentation, and the
reasons for visa revocation. Chapter 3 discusses the adjustment of status process, including who
is eligible, how to submit the application, what will happen at the adjustment interview, and a
thorough discussion of conditional residence. Chapter 4 covers consular processing, including an
overview of the process, how to obtain documents, and what to expect at the interview. These
three chapters lay the groundwork to understand how the expansions to the waiver and parole
process afforded by the 2014 executive action impact the immigrant community.

In Chapter 5, this manual explains the provisional waiver and the expansion of the waiver, as
directed by the 2014 executive action, and later as implemented by regulation. This chapter
discusses the new regulations, the requirements for the waiver, and how to apply.

Chapter 6 provides an analysis of parole-in-place, the benefits of obtaining parole for

adjustment-eligible immigrants, eligibility requirements, and how to apply.

Part Two: Existing DACA

The second part of the manual focuses on the 2012 executive action creating DACA. Chapter 7
covers DACA and the DACA eligibility requirements. Chapter 8 discusses advance parole,
focusing on its use for DACA applicants and recipients and explaining both the benefits and risks.

Part Three: Screening for Other Immigration Relief

This part of the manual provides information on screening immigrant clients for more permanent
forms of relief, as well as screening them for the risk of enforcement. Chapter 9 provides an
overview of other potential ways in which immigrant clients may be able to obtain lawful status

11
DHS, Directive to Provide Consistency Regarding Advance Parole, (Nov. 20, 2014),
www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf.

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including through U nonimmigrant status, the Violence Against Women Act, asylum, T
nonimmigrant status, Temporary Protected Status, cancellation of removal, Special Immigrant
Juvenile Status, the Nicaraguan Adjustment and Central American Relief Act, and others. Finally,
Chapter 10 discusses the 2017 enforcement priorities that were issued as this manual went to
press. These priorities provide advocates with information about which clients may currently be
at the greatest risk of enforcement.

Many programs mentioned in this manual, such as parole, DACA, and the enforcement priorities,
are in flux, particularly after the 2016 election. At the time this manual is being published,
President Trump has begun issuing executive orders on immigration policy, with potentially more
to follow. We therefore invite you to visit the Immigrant Legal Resource Center’s website at
www.ilrc.org for updates and to join our education listserv by subscribing at
www.ilrc.org/subscribe to receive email messages about updates to this manual as well as in-
person and webinar trainings opportunities related to immigration executive actions.

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CHAPTER 2

FAMILY VISAS: QUALIFYING FAMILY RELATIONSHIPS, ELIGIBILITY FOR

VISAS, AND APPLICATION PROCESS

This chapter includes:

§ 2.1 Overview of the Family Immigration Process: A Two-Step Process................. 2-1

§ 2.2 The Immediate Relative Category and the Definition of “Child” and

Chapter 2
“Spouse” ............................................................................................................. 2-5
§ 2.3 K Visa............................................................................................................... 2-10
§ 2.4 Petitions under the Preference System: Definition of Siblings and Sons
and Daughters ................................................................................................... 2-13
§ 2.5 The Preference Categories................................................................................ 2-14
§ 2.6 Derivative Beneficiaries ................................................................................... 2-18
§ 2.7 The Preference System ..................................................................................... 2-20
§ 2.8 Using the State Department Visa Bulletin to Make an Estimate of
When Your Client Can Immigrate ................................................................... 2-21
§ 2.9 Advising Your Client about When a Visa May Become Available ................. 2-27
§ 2.10 Child Status Protection Act (CSPA) ................................................................ 2-28
§ 2.11 Completing Government Forms ....................................................................... 2-35
§ 2.12 Completing the Visa Petition, Form I-130 ....................................................... 2-36
§ 2.13 The G-325A and Photograph: Required in a Petition for a Husband or
Wife .................................................................................................................. 2-42
§ 2.14 Documenting the Visa Petition......................................................................... 2-43
§ 2.15 Documents to Prove Family Relationship? ...................................................... 2-43
§ 2.16 Making Proper Copies of Documents .............................................................. 2-46
§ 2.17 Making Certified Translations of Documents .................................................. 2-47
§ 2.18 Documenting the Immigration Status of the Petitioner .................................... 2-48
§ 2.19 Filing the I-130 Packet ..................................................................................... 2-49
§ 2.20 When Is a Visa Petition Terminated or No Longer Valid? .............................. 2-49

Gina is a lawful permanent resident of the United States. She recently married Juan, a citizen of
Mexico. Juan has a 10-year-old daughter named Soledad. Can Gina help Juan and Soledad
obtain legal status in the United States?

§ 2.1 Overview of the Family Immigration Process: A Two-Step Process

This chapter will discuss how people can immigrate through family members who are U.S.
citizens or lawful permanent residents. U.S. citizens and lawful permanent residents can help
certain family members immigrate to the United States. This is a two-step process. The first step

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is the family visa petition. The second step is the application to become a permanent resident.
Each step involves different legal and factual issues.

A. Step One: The Petition

In order for a person to immigrate to the United States through a U.S. citizen (USC) or lawful
permanent resident (LPR) relative, the USC or LPR relative has to prove that their foreign
national relative has the required relationship to immigrate to the United States through a family
member. In other words, the USC or LPR must petition the U.S. government to allow the foreign
national to apply for an immigration benefit. The USC or LPR relative is called the “petitioner”
Chapter 2

and the foreign national relative is called the “beneficiary.”

The form that begins the process of immigration of a family member is filed by the USC or LPR
relative and is called the “Petition for Alien Relative,” Form I-130, commonly referred to as the
“visa petition.” Only a U.S citizen or permanent resident can file a family-based immigrant visa
petition on behalf of a family member.

Two facts must be established in support of a visa petition:

1. The petitioner and the beneficiary have the family relationship required for the petition
(for example, parent and child), and
2. The petitioner has the immigration status required for the petition—either U.S.
citizenship or lawful permanent (or conditional lawful permanent resident status).

If these elements are proven, USCIS must approve the visa petition and step one will be
completed. 1

Generally, petitioning relatives prove their relationship with their beneficiary relatives by
submitting official documents such as birth and marriage certificates. But some cases may be
more complex. A married couple, for example, must show not only that they are legally married
but also that the marriage is bona fide and not a fraud or sham entered into solely for immigration
purposes. Some children may have to submit extra documents to show that they qualify as the
child of the parent under immigration law. These include stepchildren, adopted children, orphans,
and children born out of wedlock. Also, an adopted child cannot petition for his biological birth
parents or birth siblings.

PRACTICE TIP: Where the I-130 petition is filed depends on where the petitioner resides and
whether the Form I-130 is being filed alone or concurrently with the beneficiary’s Application for
Permanent Residence on Form I-485, or “adjustment of status.” (If the beneficiary is an
immediate relative; see § 2.2 below). See Chapter 3 for more information on adjustment of
status.

1
There are two exceptions barring approval of otherwise qualified petitions: (1) past marriage fraud (or
attempted marriage fraud) engaged in by the beneficiary, see INA § 204(c), and (2) a conviction of the
petitioner for a certain “specified offense against a minor,” see INA § 204 (a)(1)(A)(viii), known as the
“Adam Walsh Act” provision.

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You must check the most recent version of the Form I-130 instructions on the USCIS website
(www.uscis.gov/i-130) to determine the exact address for filing, and any other filing instructions.

NOTE: The Adam Walsh Child Protection and Safety Act may prohibit certain petitioners from
successfully filing visa petitions for any family member if the petitioner was convicted of a
“specified offense against a minor,” unless USCIS determines that the petitioner poses no risk to
the beneficiary. The “minor” must have been under 18, and the convictions specified, broadly
defined, involve primarily sexual or related offenses. 2

Chapter 2
When the visa petition on Form I-130 is filed, the beneficiary is categorized according to the
relationship that qualifies him or her for an immigrant visa. For example, relatives who fit the
definition of a “child” or “spouse” of a lawful permanent resident fall under the category referred
to as “second preference” or “2A,” and sons and daughters of U.S. citizens (children over 21) are
classified as “first preference” or category “1.” These categories are discussed in more detail in
the sections that follow, but generally speaking, they each represent a queue or waiting list of
foreign nationals on behalf of whom their U.S. citizen or lawful permanent resident relatives have
filed visa petitions. The reason for these waiting lists is that the number of people who can
immigrate each year is limited by the law. Therefore, after the visa petition is approved, some
foreign national relatives are placed on the waiting list until an immigrant visa becomes available.

B. Step Two: Application to Immigrate

Once the relative’s petition moves to the front of the waiting list, he or she can proceed to step
two and apply to immigrate. The end goal is referred to as becoming a lawful permanent
resident, immigrating, obtaining an immigrant visa, or obtaining a green card. These terms are
often used interchangeably, and basically mean the same thing: the person becomes a lawful
permanent resident of the United States with the right to live and work in the United States.

How soon the beneficiary gets to the front of the waiting list and can apply to immigrate depends
on which waiting list he or she is in. In other words, it depends on which category of relatives
eligible for family visas he or she belongs to. For example, spouses, parents and unmarried
children of U.S. citizens are considered “immediate relatives” and they do not have to wait in
line at all. They can immigrate relatively quickly. 3 If such a beneficiary is physically present in
the United States and eligible for adjustment of status, he or she can apply for permanent resident
status at the same time as the visa petition is filed or as soon as the visa petition is approved. This
is because immediate relatives always have immigrant visas available to them—the law does not
set a quota on how many immediate relatives may come each year.

However, because other relatives of U.S. citizens and lawful permanent residents have a limited
number of visas available to them through a yearly “quota,” they must wait for visa number

2
See Aytes, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e)
Under the Adam Walsh Child Protection and Safety Act of 2006, (Feb. 8, 2007), available at
www.uscis.gov/files/pressrelease/AdamWalshAct020807.pdf.
3
See § 2.2 of this chapter.

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availability, which can often take several years. These relatives are organized into groups referred
to as “preference categories” and they are categorized according to the relationship that qualifies
them for an immigrant visa. Under this “preference system,” these beneficiaries may have to
wait many years after the visa petition is approved before they can actually immigrate.4 See § 2.4.

When applying to immigrate, the applicant must prove that she is admissible as an immigrant.
An applicant is admissible if she does not fall within a ground of inadmissibility. But an
applicant who is inadmissible can still sometimes immigrate if USCIS agrees to waive (forgive)
the ground of inadmissibility. Otherwise, the inadmissible applicant cannot immigrate.
Chapter 2

Thus, three facts must be established at step two:

1. The visa petition is still valid (petitioner-beneficiary relationship still exists, the petitioner
still has the required immigration status and the petition has not been terminated by the
U.S. Department of State); 5
2. An immigrant visa is now available for the beneficiary/applicant and she does not have to
wait any longer; and
3. The beneficiary/applicant is not inadmissible, or if she falls into a category of
inadmissibility, that she or he can obtain a waiver of the inadmissibility ground.

Special rules apply to married couples. Some people who immigrate through their marriage must
go through a third step to immigrate. Applicants who have been married for less than two years at
the time the immigrant spouse actually becomes a lawful permanent resident, obtain something
called conditional permanent residency, which is valid for two years. The married couple must
file a joint petition to remove that conditional status before the end of the two years to obtain full
lawful permanent residence.

IMMEDIATE RELATIVES PREFERENCE CATEGORIES

 Children  Married & unmarried sons &
 Spouses daughters of USC’s
 Parents of USC’s  Siblings of USC’s
 Spouses, children and unmarried
sons & daughters of LPR’s

C. Adjustment of Status versus Consular Processing

People can immigrate in one of two ways: by applying for immigrant visa processing in another
country at a U.S. consulate (also called “consular processing”) or by applying for adjustment of
status to permanent residency at a USCIS office in the United States. These two different tracks
are discussed in detail in the chapters that follow.

4
See §§ 2.4–2.10.
5
See § 2.20 regarding termination and revocation of visa petitions.

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GENERAL 2-STEP PROCESS TO IMMIGRATE THROUGH A RELATIVE

Step 1: Visa Petition

Step 2: Application to Immigrate

Chapter 2
Consular Processing Adjustment of Status

§ 2.2 The Immediate Relative Category and the Definition of “Child”

and “Spouse”

A. Who Is an Immediate Relative?

Certain people can immigrate as the immediate relative of a U.S. citizen. Immediate relatives
can immigrate very quickly. As soon as the visa petition is approved, the person may begin the
application to immigrate, because visas are always available for immediate relatives of U.S.
citizens. Visa availability never delays immigration for immediate relatives, but the application
process itself may take several months, depending on how busy the USCIS or consulate office is.
Under § 201(b) of the Act, the following people qualify as immediate relatives:

CATEGORY BENEFICIARIES COVERED BY THIS CATEGORY

Spouse of a USC.
Immediate Relative “Children” of a USC (“child” as defined in the INA, see below).
Parents of USC’s, when USC’s are over 21.

Example: Alfredo is married to a U.S. citizen. Laura has a U.S. citizen son who is 30
years old. Kwan is 12, and his father is a U.S. citizen. Alfredo, Laura and Kwan all
qualify as immediate relatives of U.S. citizens.

A separate visa petition must be filed for each immediate relative; and immediate relatives cannot
include “derivative beneficiaries” in their visa petitions. For example, if the beneficiary spouse of
a U.S. citizen petitioner has a child, the U.S. citizen petitioner must file a separate immediate
relative visa petition on behalf of that child, whether the child is the biological, step, or adopted
child of the U.S. citizen. This is one reason why it is important to understand the rules about
which relative qualifies under which category, such as who is considered a child and who is
considered a spouse.

“One-Step” Adjustment Applications: Immediate relatives who qualify for adjustment under
INA § 245(a) or INA § 245(i) can often submit the I-130 at the same time as the adjustment

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application, instead of waiting for visa petition approval first. See Chapter 3 for a discussion of
adjustment.

B. Who Is a “Child”?

The term “child” has a special legal meaning in immigration law and includes different types of
child-parent relationships. 6 It also differs in some respects than the definition of “child” in other
parts of the immigration law. 7 For purposes of immigrating as a family member of U.S. citizen or
permanent resident, to be a child the person must meet two important criteria.
Chapter 2

1. The person must be unmarried and under 21 years of age

Example: A daughter who is 21 years old when the petition is filed is not a child under
the INA and cannot be petitioned for as an immediate relative. (She may, however, be
able to immigrate as a “daughter” through a preference petition. See § 2.4.)

A person who is divorced or widowed at the time the petition is filed is considered unmarried.

Example: A married 19-year-old daughter is not a child. But a 19-year-old divorced

daughter is a child under the INA.

However, note that if the USCIS or the immigration court find that the divorce was sought purely
for purposes of obtaining an immigration benefit, they may deem the petition and corresponding
application fraudulent and may thus deny them. 8

NOTE: The Child Status Protection Act (CSPA) allows some children of U.S. citizens and
permanent residents who turn 21 while a parent’s visa petition is pending to immigrate as if they
were still children, even though they are 21 years old or older at the time of adjustment or
consular processing. See § 2.10. The National Defense Authorization Act also allows some
children to be classified as immediate relatives after turning 21 if they are children of deceased
USC or LPR members of the armed forces who died “as a result of an injury or disease incurred
in or aggravated by combat.” The child must have been under 21 and unmarried at the time the
parent died and self-petition within two years of the parent’s death. See INA § 329A.

2. The person must have a child-parent relationship that USCIS recognizes

Biological children who were born in wedlock are considered “children” of their biological
parents most clearly under the immigration laws. But other children, such as stepchildren,
adopted children, adopted orphans, and children born out of wedlock, may also qualify if they
meet specific additional requirements. The requirements are discussed in detail in the reference
books listed at the end of this chapter. Here is an overview of these other categories of “children”:

6
See INA §§ 101(a)(39), 101(b)(1).
7
An example is that a “step-child” is not a “child” for purposes of acquisition or derivation of citizenship.
INA §§ 101(b), § 101(c).
8
See Matter of Aldecoatalora, 18 I&N Dec. 430 (BIA 1983).

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Stepchildren. A stepchild is a child for immigration purposes if the marriage that created the
stepparent-stepchild relationship took place before the child became 18 years old. See INA
§ 101(b)(1)(B).

Example: Gina, a lawful permanent resident, marries Juan. Juan has a 10-year-old
daughter, Soledad. Can Gina petition Soledad as her child?

Yes. Since Juan and Gina married before Soledad reached the age of 18, Soledad is
Gina’s child for immigration purposes. Soledad became Gina’s stepchild as of the date of
Gina and Juan’s marriage.

Chapter 2
In cases where the parents are still married, there is no need for the stepparent to establish that he
or she has an ongoing relationship with the child. However, where the marriage creating the
stepchild relationship has been terminated by death, divorce or legal separation, the Board of
Immigration Appeals (BIA) has ruled that the petitioning stepparent must prove that a stepparent-
child relationship continues to exist as a matter of fact. 9

Adopted Children Generally. Certain children adopted while under the age of 16 who have
resided with the adoptive parents for two years and who have also been in the legal custody of the
adoptive parents for two years may qualify as children under the Act.10 The two years residing
together and two years legal custody requirements do not need to be fulfilled at the same time. In
addition, the burden is placed on the parent to establish primary parental control during the two-
year period of joint residence. 11

There are two exceptions to these requirements:

First, if the same adoptive parents adopt a brother or sister of an adopted child, the parents must
meet the same requirements for the second child, but adoption may take place while the child was
under the age of 18, rather than under 16 years.

Second, the Violence Against Women Act of 2005, removed the two-year custody and residency
requirements for abused adopted children. Adopted children, rather, can obtain permanent
residency through a self-petition even if they have not been in the legal custody of or resided
with, the adoptive parent for at least two years, if the child has been battered or subject to extreme
cruelty by the adoptive parent or by a family member of the adoptive parent. See VAWA
§ 805(d).

Children Adopted Subject to Hague Adoption Convention. On April 1, 2008, The Hague
Adoption Convention went into effect. This is an agreement between the United States and many

9
See Matter of Breier, 8 Immig. Rptr. B1-57 (BIA 1997); Matter of Mowrer, 17 I&N Dec. 613 (BIA
1981); Matter of Mourillon, 18 I&N Dec. 122 (BIA 1981) (step-siblings).
10
INA § 101(b)(1)(E), 8 CFR § 204.2(d)(2)(vii).
11
See Matter of Marquez, 20 I&N Dec. 160 (BIA 1990). This is particularly important if the adopted child
is a relative of the adoptive parents. USCIS will closely examine whether the biological parent has truly
given up “parental control” to the adoptive parents, or whether the adoption is a “sham” for immigration
purposes.

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other countries governing international adoptions. The Hague Convention changed the rules
under which U.S. citizens can adopt children from the other countries that are signatories to the
Convention. 12 U.S. citizens who wish to adopt a child from one of these countries must be careful
to comply with the rules of the Convention or their adoption will not be recognized by USCIS. 13
A child adopted from a Hague Convention country by a U.S. citizen that is a habitual U.S.
resident qualifies for visa status as an immediate relative. 14

If a child is adopted from a non-Hague Convention country, but is adopted abroad, this adoption
is classified as an “Orphan Adoption” and different rules apply (see “Adopted Orphans,” below).
Chapter 2

NOTE: If your client is adopting a child from a Hague Convention country then the client must
make sure that he or she is in compliance with the Hague Convention as well as the adoption laws
of the country in which the adopted child resides.

Adopted Orphans. Orphans adopted abroad in a non-Hague Convention country while under the
age of 16 by a U.S. citizen may qualify as children under the INA. 15 “Orphan” under the INA has
a different meaning from common usage and does not necessarily require that the child’s birth
parents be deceased. In order for a child to meet the definition of “orphan,” the adopting parent
must obtain a valid home study before adopting and meet many other requirements. 16 If the same
adoptive parents adopt a brother or sister of an orphan, the second child must meet the same
requirements but can be considered an orphan if the orphan petition is filed while he or she is
under the age of 18.

Children Born Out of Wedlock. If a child’s parents are not married at the time of birth, he or
she is considered a “child born out of wedlock.” 17 Such a child trying to immigrate through his or
her mother should not have a problem. But if the child tries to immigrate through the father, the
family must meet certain conditions. 18 They must either prove that the father has “legitimated”
the child or established a bona fide relationship with the child before the child reaches the age of
21 by showing “an actual concern for the child’s support, instruction and general welfare.” 19 The
family also must prove that the father is the biological father.

Example: Geraldo has a daughter Eliza. He and Eliza’s mother never married. Geraldo
lived and worked in the United States for years, but he always sent money to Eliza’s
mother for her upbringing in Mexico. He visited her every year when he returned to
Mexico, and they sometimes wrote letters to each other. Everyone in the village knows

12
22 CFR § 42.24.
13
The current list of Hague Convention member countries can be found on the U.S. Department of State’s
website at: http://adoption.state.gov/hague_convention/countries.php.
14
INA § 101(b)(1)(G).
15
INA § 101(b)(1)(F).
16
See 8 CFR § 204.3.
17
See INA §§ 101(b)(1)(A), 101(b)(1)(D), 101(b)(2).
18
INA § 101(b)(1)(C), (D).
19
8 CFR § 204.2(d)(2)(iii); see also Matter of Pineda, Int. Dec. 3112 (BIA 1989).

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that Geraldo is Eliza’s father. Geraldo’s mother in Mexico is a devoted grandmother to

Eliza and often cares for her.

Geraldo has become a permanent resident and wants to petition for Eliza, who is 16. To
prove that they have had a bona fide relationship, he will submit copies of money-order
receipts, copies of letters, and affidavits of friends, neighbors and others to show the
emotional and financial support he provided to Eliza as her father. To prove that he is
Eliza’s natural father, Geraldo will submit her birth certificate listing him as father. If no
father is listed on the birth certificate, the regulations specify what other “secondary
evidence” proof of relationship is acceptable to USCIS, such as baptism certificates,

Chapter 2
medical and school records or affidavits. 20 DNA evidence may also be required. 21

In other cases, the family may prove that the child has been “legitimated” under the law or that
the child should not have been considered illegitimate in the first place, because the laws of the
particular country where he or she was born do not distinguish between children born in or out of
wedlock. 22 Note that while some countries have passed laws to eliminate discrimination against
children born out of wedlock, some still require a marriage of the parents for the child to be
considered legally “legitimated.” 23 The “legitimation” may occur under the laws of the child’s
residence or domicile or that of the father, and the petitioner may choose that which is most
favorable. 24 If relying on a foreign country’s “legitimation” laws, it is critically important to
research the current law of that country or consult with an expert.

PRACTICE TIP: Always ask clients specifically to disclose to you all children they may have
inside or outside of marriage. Some people are not aware that children born out of wedlock are
also “children” for immigration purposes, or sometimes the existence of these children may be a
sensitive issue, and so the parents fail to list them on their immigration petitions and applications.
They should be told that if they fail to include any such children on petitions filed with USCIS, it
will be more difficult later to claim these children for immigration purposes.

C. Who Is a “Spouse”?

All couples, including same sex and opposite sex, who are legally married and have a bona fide
marriage relationship are spouses under the INA. USCIS looks to the law of the place where the
marriage took place when determining whether it is valid for immigration law purposes.

Same-Sex Spouses. Same-sex marriage is recognized in the United States, but couples who did
not live in a jurisdiction that recognized same-sex marriage (e.g., they lived abroad) need to
obtain a lawful marriage in a location that does so.

20
8 CFR 204.2(d)(2)(v). Note that the regulations have very specific requirements for affidavits used as
secondary evidence.
21
8 CFR 204.2(d)(2)(vi).
22
See, e.g., Matter of Patrick, Int. Dec. 3076 (BIA 1988).
23
See Matter of Hines, 24 I&N Dec. 544 (BIA 2008).
24
8 CFR 204.2(d)(2)(ii).

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Transgender Spouses. Marriages where one or both partners are transgender are treated the same
as other marriage cases, whether same sex or opposite sex. Familiarity with the April 2012
USCIS Policy Memorandum regarding the adjudication of benefits for transgender individuals
may be helpful in assisting transgender clients to ensure the appropriate gender identification is
reflected on immigration documents. This memorandum clarifies that sex reassignment surgery is
not necessary to change the gender marker and acknowledges a broader range of clinical
treatments and other steps that can result in a legal change of gender. 25

Widows and Widowers. A widow or widower of a U.S. citizen, who was not legally separated
from the U.S. citizen at the time of his or her death, will continue to be considered an immediate
Chapter 2

relative for two years after the U.S. citizen’s death, or until the time he or she remarries,
whichever comes first. 26 Note that the widow or widower will need to file a Form I-360 as a self-
petitioner rather than filing Form I-130. 27 Persons widowed before October 28, 2009 and who did
not have a pending I-130 petition but otherwise met the above stated criteria could file a self-
petition via Form I-360; however, such a petition must have been filed by October 28, 2011. 28

Example: Jacqueline married a U.S. citizen in June of 2014. Her husband died on
February 1, 2016. Jacqueline may file a self-petition to immigrate as an immediate
relative widow until January 31, 2018, or until she remarries, whichever comes first.

Additionally, under INA § 204(l), as of October 28, 2009, applicants who become widowed after
the I-130 had already been filed by the now-deceased U.S. citizen spouse are able to continue
with the immigration process as self-petitioners. In these cases where an I-130 has already been
filed, it will automatically be converted to an I-360 self-petition without a new filing. See INA
§ 204(a)(1)(A)(ii).

§ 2.3 K Visa

A. The Fiancé(e) Petition (the K-1 Visa)

The “K-1” petition allows a U.S. citizen (but not a lawful permanent resident) to petition for a
fiancé(e) to enter the United States in order to marry the U.S. citizen petitioner. This is not an
immediate relative visa petition, it is a “nonimmigrant” visa petition that allows the fiancé(e) to
enter the United States for a limited time and purpose: to marry the U.S. citizen within 90 days of
arrival. To qualify for this visa, the couple must show that they have met at least once in person
within the past two years, that they intend to marry, and that they are legally able to marry. Under
certain circumstances, such as an arranged marriage, the government will waive the requirement
25
USCIS Policy Memorandum, Adjudication of Immigration Benefits for Transgender Individuals (AFM
Update AD2-02),” (Apr. 13, 2012), available at www.uscis.gov/sites/default/files/USCIS/Outreach/Feedbac
k%20Opportunities/Interim%20Guidance%20for%20Comment/Transgender_FINAL.pdf.
26
INA § 201(b)(2)(A)(i).
27
See P.L. 111-83 § 568(c)(2)(B); INA § 204(a)(1)(A)(iii); see also USCIS Policy Memorandum, Approval
of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the
Immigration and Nationality Act, (Dec. 16, 2010). See § 2.20 below for information regarding beneficiaries
who become widows or widowers after the I-130 petition had already been filed.
28
See INA § 201(b)(2)(A)(i).

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that the couple actually have met in person within the past two years. If the couple does not get
married within 90 days, the fiancé(e) will be required to leave the United States, or she will be
removed. The only exception is if the couple gets married after the 90 days and the same
petitioner submits a new I-130 petition, the fiancé(e) may then adjust using the I-130 instead of
the fiancé petition.

For a U.S. citizen to file a K-1 visa petition for a fiancé(e), Form I-129F must be filed at the
Service Center with jurisdiction over the petitioner’s residence. If the petitioner and fiancé(e) live
outside of the United States, the Form I-129F must be submitted to the Service Center with
jurisdiction over the petitioner’s last place of residence in the United States.

Chapter 2
The K-1 fiancé(e)’s unmarried children under the age of 21 can be included in the petition and
enter the United States with the fiancé(e) parent. Children of K-1 fiancé(e)s are designated as “K-
2” visa holders. K-2 visa holders can become permanent residents as long as they still qualify for
the K-2 visa, meaning that they must be unmarried and under 21 at the time the application is
approved.

After the marriage, the alien spouse must apply for adjustment of status to permanent residence,
filing the application with USCIS in the United States. The couple does not need to file an I-130,
however, as long as the marriage occurred within 90 days of the beneficiary’s admission to the
United States. 29 The government will grant the alien spouse conditional residence status for two
years. Before the end of the two years, the couple will have to apply to remove the conditional
status so that the alien spouse can remain in the United States. 30

PRACTICE TIP: If the K-2 is about to turn 21, you must immediately notify USCIS and ask that
the adjustment applications for the K-1 and K-2 be expedited before the K-2 “ages out” or the K-
2 will lose the opportunity to adjust status. It is USCIS’ position that the Child Status Protection
Act (CSPA) does not apply to K-2 applicants for adjustment of status who age out before USCIS
grants LPR status. Follow up and request assistance from a supervisor at USCIS, if necessary.
This is a deadline that must not be missed.

Two other laws affect U.S. citizen petitioners directly. The International Marriage Broker
Regulation (IMBRA) provides that alien fiancé(e)s and spouses coming to the United States
with K visas must be provided information regarding the petitioner’s past criminal activity and
other K petitions previously filed by the petitioner. When filing the I-129F, petitioners now must
provide information regarding certain criminal convictions, which will be shared with the
beneficiary prior to the issuance of a K visa. The petitioner for a K-1 fiancé(e) visa must also
request a waiver if the petitioner has filed two or more K-1 visa petitions at any time in the past or
had a prior K-1 petition approved within the last two years.31

The second law is the Adam Walsh Child Protection and Safety Act, which prohibits a U.S.
citizen petitioner from filing K nonimmigrant visa petitions for fiancé(e)s, spouses or minor

29
See INA §§ 101(a)(15)(K), 214(d); 8 CFR § 214.2(k).
30
See INA § 245(d), INA § 216. See Chapter 3.
31
See INA § 212(d)(2)(C).

2-11
 Tab Position 1
Immigrant Legal Resource Center
December 2016

children if the petitioner was convicted of a “specified offense” against a minor, which is listed in
the statute, unless USCIS determines that the petitioner poses no risk to the beneficiary.

B. Petitions for Spouses and Children of U.S. Citizens (the K-3 and K-4 Visas)

As of December 21, 2000, the Legal Immigration and Family Equity Act (LIFE Act) created a
new nonimmigrant visa category for the spouses and minor children of legal permanent residents
(the V visa), and also expanded the availability of K visas to include spouses and minor children
of U.S. citizens residing abroad. The intent of this expansion was to expedite the entry into the
United States of these spouses and minor, unmarried children on “non-immigrant” visas and
Chapter 2

allow them to subsequently apply for adjustment to permanent residency in the United States.

Example: Vijay, who is a U.S. citizen, recently traveled to India to get married. He just
returned to the United States to file immigration papers for his new wife. While waiting
for an I-130 approval notice, he can file a K-3 visa petition for his new wife who will
then be allowed to travel to the United States where they will be able to apply for her
green card, instead of waiting for her to go through consular processing in India.

In order to obtain a K-3 visa, the U.S. citizen spouse must have submitted an I-130 Relative
Petition and received the Notice of Action (I-797) from the USCIS indicating that the Service has
received the petition. The U.S. citizen spouse can then file an I-129F and all supporting
documents with the Service Center where the underlying I-130 petition is already pending. Use
the address on the most recent receipt or transfer notice.

However, for petitions filed from abroad, contact the U.S. embassy or consulate nearest the
petitioner’s residence for current filing instructions.

In addition, the K-4 visa allows the under 21 and unmarried children of K-3 eligible applicants to
enter the United States as well. However, if the K-4 is the step-child of the U.S. citizen petitioner,
the petitioner and the K-3 spouse had to marry before the K-4 child turned 18, if order for the
child to qualify to adjust status to permanent resident after entering the U.S. with the K-4 visa.

Example: Vijay’s new wife has a 12-year-old daughter. Vijay can request a K-4 visa to
bring his wife’s daughter (i.e., Vijay’s new stepdaughter) into the United States.

PRACTICE TIP: Before filing a K-3 visa petition, compare the processing times for the I-129F for
spouses (K-3) and the I-130. If processing times are similar, do not file the I-129F to try to obtain
the K-3, as it will not benefit the couple. This is because in cases where the I-130 is approved
before the K-3 petition, or the I-130 reaches the Department of State from USCIS before the
spouse obtains the K-3 visa to travel to the U.S., the spouse will be considered ineligible for the
K-3. Instead the consulate will require the spouse to apply for an immigrant visa as a beneficiary
of the I-130 petition, and will invalidate the K-3 petition. Though the intent of Congress in adding
the K-3 and K-4 categories to the INA was to speed up the reunification of U.S. citizens with
their spouses, in practice, processing times for the I-129F for a K-3 and the I-130 have been
nearly identical in the past, making the K-3 an unviable choice for most potential beneficiaries.
This may change in the future if I-130 processing again becomes backlogged.

2-12
 Tab Position 1
Practical Strategies for Immigration Relief: Family-Based Immigration and Executive Actions
December 2016

§ 2.4 Petitions under the Preference System: Definition of Siblings and

Sons and Daughters

Family members who do not qualify as an immediate relative or fiancé(e) beneficiaries may be
able to immigrate another way, through the preference system. Unlike an immediate relative, the
beneficiary of a preference petition may have to wait for some period of time between approval of
the visa petition and immigrating. The waiting period is discussed in § 2.8–2.9.

Before discussing preference petitions, we must define two new categories of family members:
“sons and daughters” and “siblings” (brothers and sisters).

Chapter 2
A. Who Is a Son or Daughter?

A son or daughter is a person who once qualified as a child but now may be over 21 or married.

Example: Gina and Juan marry when Soledad is 10 years old. Soledad qualifies as a
child under the stepchild rule discussed above. Years later, when Soledad is 30, she wants
to immigrate through Gina. She is not a child because she is over 21. Can she qualify as
Gina’s “daughter”?

Did Soledad ever qualify as Gina’s “child”? Yes. Since Soledad once qualified as Gina’s
child, she now can qualify as her daughter.

B. Who Is a Sibling (Brother or Sister)?

Siblings are persons who were once “children” with at least one parent in common either by
adoption or by blood relation. However, an adopted child cannot file a visa petition for his or her
biological siblings or parents if the adoption is one that meets the definition of “adopted child”
under the immigration laws and someone received an immigration benefit due to the adoption.
After such an adoption, the biological siblings or parents can immigrate through the adopted child
only if no immigration benefit was received due to the adoption, the adoption has been legally
terminated, and the original parent-child relationship has been lawfully reestablished.

Example: Suppose that when Soledad was age 30, Gina left Juan and had another child,
Fidel, with another man. Years pass. Now Fidel is 30 years old and Soledad is 60. Are
Fidel and Soledad siblings under the INA?

Yes, they qualify as siblings because both Soledad and Fidel once were children with the
same mother, Gina. It does not matter that they were not children at the same time or that
Soledad was a stepchild and Fidel a child born out of wedlock. At one time, they both
qualified as Gina’s “children” under the Act.

Example: A U.S. citizen married couple adopts Lim, born in China. They petition for her
as their child and she immigrates, later becoming a naturalized U.S. citizen. When Lim
grows up, she travels to China and meets her birth parents and biological siblings. Lim
wants to petition for her natural sister. Can she?

2-13
 Tab Position 1
Immigrant Legal Resource Center
December 2016

No. Although Lim and her sister have the same biological parents, Lim’s adoption
canceled her ability to file visa petitions for her birth parents and her biological siblings.32
If Lim had not immigrated through her adopted parents but had immigrated another way,
and her adoption was ultimately terminated, she might have been able to petition for her
natural parents and siblings.

§ 2.5 The Preference Categories

People who immigrate through a family preference visa petition will fall into one of four
Chapter 2

categories. These categories are set forth at INA § 201(b). The preference categories are:

PREFERENCE CATEGORY BENEFICIARIES COVERED BY THIS CATEGORY

Unmarried sons and daughters, 21 years of age or older, of U.S.
First Preference (F1)
citizens.
(2A) Spouse and unmarried children (under 21) of LPRs.
Second Preference Unmarried sons and daughters (over 21) of LPRs. If an
(2B) unmarried son or daughter of an LPR marries, he or she loses
eligibility to immigrate as the son or daughter of an LPR.
Third Preference (F3) Married sons and daughters (of any age) of USCs.
Siblings of USCs, when USCs are over 21. The petitioner must
Fourth Preference (F4) be at least 21 years old. Both siblings must at some time have
been the children of one common parent.

A. Conversion of the Petition to a New Category

In many circumstances where a beneficiary would no longer qualify under a particular category,
the visa petition will transition to a new category. This might happen in circumstances such as a
when a child turns 21, where there is a change in the beneficiary’s marital status, where there is a
change in the petitioner’s immigration status or a change in the relationship between the
petitioner and beneficiary through marriage or the termination of a marriage. In some instances,
described below, the petition may stay alive in a new category, and the beneficiary may retain his
or her priority date.

The basic rule is: If the same petitioner and beneficiary have a new relationship which also will
support a family petition, the beneficiary retains the previously filed petition and priority date but
will now qualify under a new preference category, which means that the beneficiary now must
wait in a different line for an immigrant visa. Additionally, the Child Status Protection Act
(CSPA) protects children from aging out of eligibility in certain cases, see § 2.10 for more
information.

32
See INA § 101(b)(1)(E); Matter of Xiu Hong Li, 21 I&N Dec. 13 (1995); Matter of Li, Int. Dec. 3207
(BIA 1993); Matter of Kong, 17 I&N Dec. 151 (1979).

2-14
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