Immigration Lawyers in Buffalo: Understanding Family-Based Immigration Petitions and Adjustment of Status is important for families who want to understand how a relative may qualify for permanent residence in the United States. Family-based immigration can involve several steps, including filing Form I-130, proving the qualifying family relationship, checking visa availability, and, in some situations, applying for adjustment of status through Form I-485. The correct process depends on the relationship between the petitioner and beneficiary, the beneficiary’s location, immigration history, and other eligibility requirements.
What Is Family-Based Immigration?
Family-based immigration allows U.S. citizens and lawful permanent residents to petition for the immigration of their family members who meet the requirements.
It typically starts with a family relationship. The case can be in an immediate relative category or a family-sponsored preference category based on the petitioner’s status and the relationship.
The common family relationships are:
- Spouse
- Parent
- Unmarried child
- Married child
- Sibling
Immigration is not the same for all family relationships. There are numerical limits on some categories and there are some immediate relatives of U.S. citizens who are not subject to those numbers.
What Is Form I-130?
The Petition for Alien Relative (Form I-130) is a document that is typically submitted by a lawful U.S. citizen or lawful permanent resident to establish a qualifying family relationship with a relative who may qualify for an immigrant visa or permanent residence.
The I-130 petition alone does not provide the beneficiary with a green card or legal permanent resident status. USCIS explicitly states that the filing of an I-130 is not a grant of lawful permanent residence or a grant of immediate permission to immigrate. After the I-130 Buffalo petition is filed or granted, a family case may entail other immigration proceedings.
Who Can File a Family Petition?
Eligibility to petition is based on the petitioner’s immigration status and relationship to the beneficiary.
The U.S. citizen may be able to petition for the following qualifying relatives:
- Spouse
- Unmarried children under 21
- Unmarried adult children
- Married children
- Parents
- Brothers and sisters
Lawful permanent residents can petition for certain family members: spouse and unmarried children.
The class of visa issued to the beneficiary may impact whether the immigrant visa is issued immediately or the beneficiary must wait for the visa number.
Immediate Relatives of U.S. Citizens
Some family members of U.S. citizens are eligible for special treatment under U.S. immigration law.
Typically, immediate relatives are:
- Spouses of U.S. citizens
- Unmarried children under 21 of U.S. citizens
- Parents of U.S. citizens, when the U.S. citizen petitioner meets the applicable requirements
USCIS states that immigrant visas for these immediate relatives are not subject to the same numerical limitations that apply to family-sponsored preference categories.
This distinction may be significant for those who are planning to apply for an adjustment of status and want to go about the process in good faith.
What Is Adjustment of Status?
Adjustment of status is a process by which an eligible individual who is already in the U.S. can apply for a green card without having to go abroad for immigrant visa processing.
This is typically done with Form I-485, the Application to Register Permanent Residence or Adjust Status.
However, simply having a family member file an I-130 does not automatically mean that the beneficiary can file Form I-485. However, several factors impact a person’s eligibility, such as immigration history, physical presence in the United States, admission or parole, visa availability, and more.
I-130 and I-485: What Is the Difference?
The two forms are for different reasons.
| Form | Main Purpose |
| I-130 | Establishes a qualifying family relationship |
| I-485 | Applies for adjustment to lawful permanent resident status |
| I-864 | Financial sponsorship in applicable family-based cases |
| I-765 | Application for employment authorization when eligible |
| I-131 | Application for certain travel documents when eligible |
The forms that can be used will depend on the specific situation.
When a family needs an immigration attorney Buffalo NY families consult will be able to examine the situation and tell them which applications might be suitable.
Can I-130 and I-485 Be Filed Together?
An I-130 and I-485 can be filed concurrently in some instances. This is sometimes called concurrent filing.
USCIS indicates that immediate family members of U.S. citizens who are eligible for immigrant visas can file Form I-130 concurrently with Form I-485.
Visa availability should be taken into consideration before filing an I-485 for family-sponsored preference categories.
This is one of the reasons why families shouldn’t take the same approach to filing with each relative.
What Is a Family Immigration Lawyer?
Family immigration lawyers specialize in immigration cases related to family ties.
A family immigration lawyer can assist you in comprehending:
- Whether a family petition may be available
- Which family relationship category applies
- I-130 filing requirements
- Supporting documentation
- Visa availability
- Adjustment of status
- Consular processing
- Requests for additional evidence
- Immigration interviews
- Potential eligibility concerns
The legal services that will be provided will vary depending on the attorney and the case at hand.
Documents That May Be Needed for an I-130
The documents needed may differ according to the relationship and situation.
Supported by common evidence may include:
- Proof of U.S. citizenship or permanent residence
- Birth certificates
- Marriage certificates
- Divorce decrees, when applicable
- Evidence of the qualifying relationship
- Identity documents
- Evidence of a bona fide marital relationship, when applicable
- Other documents requested by USCIS
USCIS will stress the need to include proof of the petitioner’s status and qualifying relationship.
If necessary, documents in languages other than English must also be translated appropriately as required by USCIS.
Proving a Marriage-Based Relationship
Marriage-based petitions may require more information because the government must establish if there is a valid marriage relationship.
Evidence can consist of:
- Joint financial records
- Joint lease or property records
- Insurance records
- Photographs
- Correspondence
- Travel records
- Birth certificates of children
- Other evidence showing a shared life
This evidence will vary depending on the situation. Applicants should not put on their application irrelevant materials to make a package larger. The intent is to offer clear evidence that is relevant to the claimed relationship.
Family Immigration When the Relative Is Outside the United States
Adjustment of status is typically applicable to qualifying beneficiaries who are in the United States.
Alternatively, if the beneficiary is located outside of the U.S., the case may be brought on for immigrant visa processing with a U.S. consulate or embassy. This is a difference that is significant.
For example:
Beneficiary in the United States: May be eligible to adjust immigration status if all the requirements are satisfied.
Beneficiary outside the United States: Usually goes through an immigrant visa process instead of adjustment of status.
The right process is dependent on the person’s set of conditions.
Visa Availability and Family Preference Categories
Some family-sponsored immigration categories have numerical limits. If there is a limit on a category, the person who benefits may have to wait for an immigrant visa to be available. The Department of State publishes Visa Bulletin information that is used to determine visa availability and priority dates.
USCIS further notes that there are some adjustment applications that applicants may be required to consider whether they are eligible to apply based on the visa availability chart. This does not imply that families should place any trust in a general estimation of the length of the immigration process. The category and priority date are what it’s about.
What Is a Priority Date?
A priority date is the date that is typically employed to measure the location in the queue of someone seeking an immigrant visa in a numerically limited category. If you are using a family-sponsored petition, the priority date will be linked to the date that the petition was properly filed and accepted.
If there is a waiting list in the category, the priority date may be a crucial component of the immigration case. Families need to maintain copies of USCIS notices as these provide information about the case.
How Long Does an I-130 Take?
The processing times may vary and are subject to change based on the type of petition and other factors.
USCIS publishes processing-time and historical processing data. For instance, USCIS historical data reveals that processing times for I-130 petitions for immediate relatives have fluctuated fiscal year by fiscal year.
Please refer to the current USCIS processing-time information and do not assume you will get a response within the time frame of an old processing-time estimate. An attorney can also further explain what the different stages of the process entail but cannot guarantee that processing times will occur.
What Happens After Filing an I-130?
USCIS typically issues a receipt notice to the petitioner after filing. The case could then progress through a number of stages depending on the nature and situation of the case.
These may include:
- USCIS receives the petition.
- USCIS reviews the filing.
- USCIS may request additional evidence.
- USCIS makes a decision on the petition.
- If approved, the case proceeds according to the applicable immigration process.
- The beneficiary may continue with adjustment of status or immigrant visa processing if eligible
The I-130 is an approval that does not grant permanent residence.
What Is a Request for Evidence?
USCIS may issue a Request for Evidence (RFE) if further evidence or documentation is required for a decision. RFE is a serious request.
The response should:
- Address the specific USCIS request
- Include relevant supporting evidence
- Follow the response instructions
- Be submitted by the stated deadline
- Clearly identify the case
Failure to react in the correct manner may have a negative impact on a case.
Adjustment of Status Eligibility
There are some people who have a family petition but cannot adjust their status. USCIS lists a few general requirements for family-based adjustment: physical presence in the United States, inspection and admission/parole, availability of an immediate visa (when required), and not being inadmissible based on the applicable grounds. Additional eligibility criteria may be in effect.
Immigration history can be complex, so do not assume that a qualifying family relationship is an automatic qualification.
Why Immigration History Matters
Past immigration experiences may impact options available.
Information that is important can contain:
- How the person entered the United States
- Current immigration status
- Previous visa status
- Prior applications
- Previous immigration violations
- Prior removal proceedings
- Criminal history
- Previous immigration petitions
Such information should be presented correctly when obtaining legal counsel. No immigration problems are insurmountable because of a family connection.
Immigration Interviews
In some of the immigration cases that are related to families, an interview may be required. Case types can vary in purpose and format of an interview.
In marriage cases, the public interest applicants might be examined as to the relationship and lifestyle experienced by the parties. In the other cases that are family focused, they may be concerned with the relationship, documents, immigration history, or eligibility.
It is important that applicants be candid and diligent in their responses. USCIS guidance also provides a detailed explanation of how interviews may be conducted during the adjudication process of family-based immigrant petitions.
Common Mistakes in Family-Based Immigration Cases
There are mistakes that families can make in preparing an immigration filing that they may avoid.
The usual issues will involve:
- Providing incomplete forms
- Using incorrect filing fees
- Missing signatures
- Sending insufficient relationship evidence
- Giving inconsistent information
- Ignoring an RFE
- Using outdated forms
- Failing to update an address
- Assuming I-130 approval equals a green card
- Filing I-485 without confirming eligibility
Applicants should always make sure to consult the latest instructions and guidance for filling out forms on USCIS’s website before submitting a case.
When Should You Speak With Immigration Lawyers in Buffalo?
Engaging immigration lawyers in Buffalo for immigration can be especially helpful when the family situation is not as simple as an application for immigration.
Legal guidance may be worth considering when there are:
- Previous immigration violations
- Uncertain adjustment eligibility
- Criminal history
- Prior removal proceedings
- Complicated family relationships
- Previous denied petitions
- Expired immigration status
- Interrogation about illegal aliens
- Possible inadmissibility issues
- Requests for evidence
- Complicated documentation
A lawyer will be able to look at the facts of the particular case and tell you what may be an option.
Choosing an Immigration Attorney Buffalo NY Families Can Work With
When comparing an immigration attorney Buffalo NY families are considering, ask about the attorney’s experience with cases similar to yours.
Useful questions include:
- Do you handle family-based immigration cases?
- Do you handle both I-130 and adjustment of status cases?
- Have you handled cases involving my specific family relationship?
- What documents will you need from me?
- What potential problems do you see in my case?
- Who will communicate with me about case updates?
- What services are included in your legal fee?
- Are government filing fees separate?
- What happens if USCIS requests additional evidence?
- How will you keep me informed about important case notices?
The objective is to locate a lawyer who can easily explain the procedure and also highlight potential problems.
Keeping Immigration Documents Organized
There are numerous documents in immigration cases that can be produced over many months or years.
Make a secure file with the following information:
- USCIS receipt notices
- Approval notices
- Copies of submitted forms
- Supporting evidence
- Passport copies
- Birth certificates
- Marriage certificates
- Immigration records
- Attorney correspondence
- USCIS notices
- Interview notices
Retain copies of all submissions to USCIS.
Being well organized can help in responding to future requests and recalling the past history of the case.
What Happens if a Family Member Moves?
An immigration case can be affected by an address change. Depending on the location of the case, the relevant agencies may require up-to-date information if a beneficiary has moved or changed address.
USCIS clarifies that the visa classification of a case can be impacted because of the beneficiary’s movement from the United States to another country and vice versa. Applicants must keep records up to date following USCIS guidance on ‘Address and Case Update.
I-130 Does Not Guarantee Immigration Approval
The first thing families must know is that the filing of an I-130 does not guarantee that the relative will receive a green card. The petition creates a qualifying family relationship. Ultimately, the recipient will have to meet the conditions of their chosen immigration procedure.
Other admissibility considerations, visa availability, and/or other factors could impact the outcome depending on the case. Being aware of the difference can assist families in setting realistic expectations.
Final Thoughts
Immigration through family can be a crucial point where qualifying relatives can get a path to permanent residency in the United States. But there’s more to this than just filling out an I-130. The petitioner’s status, family relationship, beneficiary’s location, immigration history, visa availability and eligibility for adjustment can all impact the next steps.
Immigration lawyers in Buffalo can assist families in understanding the process and uncover potential problems before documents are submitted to the court. An I-130 Buffalo petition, adjustment of status, or other family-based immigration case relies on accurate information and organization of documents to help ease the process.
Applicants should always check with USCIS for the latest versions of the forms, instructions on how to file, the fees, and eligibility. Immigration laws and USCIS procedures can change. This article contains general information only and should not be relied on as a substitute for legal advice on a particular immigration case.
Frequently Asked Questions
1. What is an I-130 petition?
Form I-130 is a petition used by eligible U.S. citizens or lawful permanent residents to establish a qualifying family relationship with a relative seeking immigration benefits.
2. Does an approved I-130 give someone a green card?
No. Approval of an I-130 does not automatically grant lawful permanent resident status. The beneficiary must complete the applicable immigration process and meet the relevant requirements.
3. Can an I-130 and I-485 be filed together?
In certain eligible cases, yes. Immediate relatives of U.S. citizens may generally be able to file the forms concurrently when other requirements are satisfied.
4. What is adjustment of status?
Adjustment of status is the process through which an eligible person physically present in the United States applies to become a lawful permanent resident without completing immigrant visa processing abroad.
5. Who can be considered an immediate relative?
Immediate relatives generally include a U.S. citizen’s spouse, unmarried child under 21, and parent when the applicable requirements are met.
6. What if my family member lives outside the United States?
A beneficiary outside the United States generally follows an immigrant visa process rather than adjustment of status. The appropriate process depends on the specific case.
7. How long does an I-130 petition take?
Processing times vary by category and can change. Applicants should check the current USCIS processing-time information rather than relying on an old estimate.
8. What happens if USCIS requests more evidence?
The applicant or petitioner should carefully review the Request for Evidence and respond with the requested information by the stated deadline.
9. Can immigration history affect adjustment of status?
Yes. Entry history, immigration status, previous violations, criminal issues, and other circumstances can affect eligibility. Individual cases should be reviewed carefully.
10. Should I hire a family immigration lawyer?
Legal assistance may be especially useful when a case involves complicated immigration history, possible inadmissibility issues, previous denials, removal proceedings, or uncertainty about adjustment eligibility.