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Family-Based Visa Petition

Family-Based Visa Petition
Foreign nationals can be petitioned by members of their families that are citizens or lawful permanent resident of the United States to become lawful permanent residents of the United States.  Family based  immigration is divided into immediate relatives and preference relatives.  Immediate relatives comprise of spouses, parents and children who are under 21 years old. These individuals become immediately eligible for permanent residence in the United States. Immediate Relatives Immediate relatives of U.S. citizens do not have a waiting list unlike other kinds of visa categories. Approximately 250,000 immigrant visas are issued annually to these immediate relatives. The U.S. citizen must be over 21 to petition for a parent. Preference Relatives
Preference Relatives are limited by quotas, unlike the immediate relative category.  Preference relatives are divided into four separate categories:
1) First preference - unmarried adult children of any age with one parent a U.S. citizen. 2) Second preference - spouses and children of U.S.   permanent residence.
 (2A):  Spouses and children under 21 years old, of green card holders.
 (2B):  Unmarried sons and daughters of green card holders who are at least 21 years old.
3) Third preference - married children of U.S. citizen 4) Fourth Preference - sisters and brothers of U.S. citizens, where the U.S. citizen is at least age 21. 
Other family preference categories include sons and daughters (over 21) of U.S. citizens, and brothers and sisters of U.S. citizens. But those in line as siblings now may wait 15 to 20 years.  Spouses and children (under 21) of permanent residents wait three or more years after filing the application for an available visa, while unmarried sons and daughters (over 21) of permanent residents wait some five years or more.These are the only family relationships which allow immigration to the U.S.  USCIS has very specific definitions of what constitutes "children" (including step children and adopted children) and "parents". Family relationships are typically proven with documentary evidence like birth certificates, marriage certificates and other legal documentation. The USCIS closely scrutinizes family relationships to ensure that the anchor relationship is a bona fide one and not merely entered in order to confer immigration benefit on the foreign national.  
Adjustment of status is the process of acquiring lawful permanent status by a non-immigrant residing within the U.S. It differs from consular processing which entails acquiring LPR status (green card) by a foreign national OUTSIDE of the United States. The process of adjustment of status is usually initiated by filing of an I-130 alien relative petition in family-based visa petitions and I-140 in employment-based visa petitions. A U.S.C. may petition for his or her spouse to obtain permanent residence if the spouse is residing in the U.S., has proof of lawful entry (generally in the form of a Form I94 issued upon entry). The spouse must also be admissible to the United States. Alternatively, if the spouse of a U.S. citizen is residing abroad, the U.S. citizen may file an I130, and the spouse may apply for an immigrant visa at the foreign consulate upon the approval of the I130. If the application is granted, the spouse will enter the U.S. as a lawful permanent resident. A U.S citizen may apply for a K-3 visa if he has a spouse abroad in order to circumvent the delay in the processing of the I-130. This is a lot faster and will ensure that the foreign national spouse adjusts status when she enters the U.S. The adjustment of status process is also the final step for fiancées of U.S. citizens who enter with a K-1 non-immigrant visa. K-1 visa holders must marry their U.S.C spouses within 90 day of entry and thereafter, apply for adjustment of status. When a U.S. citizen wishes to marry or has married an individual who has entered the U.S. with a visitor’s visa, the couple must be aware of a concept in immigration law regarding non-immigrant intent. Those who enter as a visitor are understood to hold the intent to return to their home country before the designated period of stay expires. If a visitor takes steps to become a lawful permanent resident, the U.S. Citizenship and Immigration Services (USCIS) may perceive that to be contrary to the intent represented, and may determine that the visitor has violated the terms or his or her stay, and may find that the visitor committed misrepresentation, which is a serious violation under immigration law. APPLICATION PROCESS FOR I-485 ADJUSTMENT OF STATUS The U.S. citizen files an I-130 immediate relative petition with the local service center. The spouse files the adjustment of status application simultaneously with the immediate relative petition and many other forms. Additionally, the application must be submitted with supporting documentation. With the adjustment of status application, the spouse may also apply for employment authorization and permission to travel while the adjustment of status is pending. All applicants should note that if they travel without the proper authorization, their adjustment of status application will be deemed abandoned. Subsequent to filing the application, the applicant will receive a biometrics appointment to have his or her fingerprints taken for an FBI background check. The local service center schedules an interview of the petitioner and the beneficiary/applicant. At the interview the USCIS officer will make a determination of whether or not the marriage is bona fide, and also whether they meet all the other criteria for admission into the United States. TWO YEAR PERIOD OF CONDITIONAL PERMANENT RESIDENCY If the marriage is less than two years old at the time the spouse is granted permanent residence, he or she will be granted “Conditional Permanent Residence,” meaning that permanent residence is granted for two years. Prior to the end of the two years (within 90 days of the expiration of conditional residence), both petitioner and the beneficiary/applicant  must submit an application to USCIS to remove conditional status. The USCIS may call in applicant for a second interview to verify that the marriage was bona fide at the time it was contracted. Removing conditional status is an extremely important step, because if a spouse fails to submit this application, his or her permanent residence is automatically terminated, and he/she will be removable from the U.S.