US immigration laws can seem confusing and downright arbitrary at times to the layperson. Laws are shaped by the composition of Congress, the state of technology, and changing social mores. For example, you can have immigrant intent when you hold H-1B or L-1 non-immigrant status, but you cannot have it when you hold H-1B1, E-1/E-2, and TN non-immigrant status. Why not? All of these visa classifications allow foreign nationals to work temporarily in the US, but only the former two openly allow a foreign national to apply for permanent residence without potentially hurting your temporary statuses.

Nonetheless, sometimes the welter of confusing statutes and regulations can conceal laws that are quite beneficial. In this essay, I wish to survey some of the more interesting aspects of family law. There are many regulations that can provide significant benefits to immigrant families. These laws show that common-sense regulations do in fact exist and that family unification is one of the most important goals of US policy - I am so glad that we have them!

Did you know...?

In certain circumstances, foreign born children can obtain US citizenship through a grandparent.

A child who regularly resides outside of the United States is eligible for naturalization if all of the following conditions have been met:1

  • The person is a child of a parent who is a U.S. citizen by birth or through naturalization (including an adoptive parent);
  • The child's U.S. citizen parent or citizen grandparent meets certain physical presence requirements in the United States or an outlying possession;
  • The child is under 18 years of age;
  • The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent, or of a person who does not object to the application if the U.S. citizen parent is deceased; and
  • The child is lawfully admitted, physically present, and maintaining a lawful status in the United States at the time the application is approved and the time of naturalization.

According to the USCIS Policy Manual, Volume 12, Part H, Chapter 5 - Child Residing Outside of the United States (INA 322), typically a child's U.S. citizen parent files a Certificate of Citizenship application on the child's behalf. If the U.S. citizen parent has died, the child's citizen grandparent or the child's U.S. citizen legal guardian may file the application on the child's behalf within 5 years of the parent's death.2

A child's U.S. citizen parent must meet the following physical presence requirements:

  • The parent has been physically present in the United States or its outlying possessions for at least 5 years; and
  • The parent met such physical presence for at least 2 years after he or she reached 14 years of age.

A parent's physical presence is calculated in the aggregate and includes time accrued in the United States during periods when the parent was not a U.S. citizen.3

If the child's parent does not meet the physical presence requirement, the child may rely on the physical presence of the child's U.S. citizen grandparent to meet the requirement. In such cases, the officer first must verify that the citizen grandparent - the citizen parent's mother or father - is a U.S. citizen at the time of filing. If the grandparent has died, the grandparent must have been a U.S. citizen and met the physical presence requirements at the time of his or her death.4

Like in the case of the citizen parent, the officer also must ensure that:

  • The U.S. citizen grandparent has been physically present in the United States or its outlying possessions for at least 5 years; and
  • The U.S. citizen grandparent met such physical presence for at least 2 years after he or she reached 14 years of age.

Like the citizen parent, a grandparent's physical presence is calculated in the aggregate and includes time accrued in the United States during periods when the grandparent was not a U.S. citizen.5

Did you know...?

A child born abroad to a lawful permanent resident of the US is also a lawful permanent resident of the US under certain circumstances, without the need to file Form I-130 Petition for Alien Relative on behalf of the child.

8 CFR 211.1 generally states:

(a) General. Except as provided in paragraph (b)(1) of this section, each arriving alien applying for admission (or boarding the vessel or aircraft on which he or she arrives) into the United States for lawful permanent residence, or as a lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States, shall present one of the following:

(1) A valid, unexpired immigrant visa;

(2) A valid, unexpired Form I–551, Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year, or in the case of a crewmember regularly serving on board a vessel or aircraft of United States registry seeking readmission after any temporary absence connected with his or her duties as a crewman;

(3) A valid, unexpired Form I–327, Permit to Reenter the United States;

(4) A valid, unexpired Form I–571, Refugee Travel Document, properly endorsed to reflect admission as a lawful permanent resident;

(5) An expired Form I–551, Permanent Resident Card, accompanied by a filing receipt issued within the previous 6 months for either a Form I–751, Petition to Remove the Conditions on Residence, or Form I–829, Petition by Entrepreneur to Remove Conditions, if seeking admission or readmission after a temporary absence of less than 1 year;

(6) A Form I–551, whether or not expired, presented by a civilian or military employee of the United States Government who was outside the United States pursuant to official orders, or by the spouse or child of such employee who resided abroad while the employee or serviceperson was on overseas duty and who is preceding, accompanying or following to join within 4 months the employee, returning to the United States; or

(7) Form I–551, whether or not expired, or a transportation letter issued by an American consular officer, presented by an employee of the American University of Beirut, who was so employed immediately preceding travel to the United States, returning temporarily to the United States before resuming employment with the American University of Beirut, or resuming permanent residence in the United States.

(b) Waivers.

(1) A waiver of the visa required in paragraph (a) of this section shall be granted without fee or application by the district director, upon presentation of the child's birth certificate, to a child born subsequent to the issuance of an immigrant visa to his or her accompanying parent who applies for admission during the validity of such a visa; or a child born during the temporary visit abroad of a mother who is a lawful permanent resident alien, or a national, of the United States, provided that the child's application for admission to the United States is made within 2 years of birth, the child is accompanied by the parent who is applying for readmission as a permanent resident upon the first return of the parent to the United States after the birth of the child, and the accompanying parent is found to be admissible to the United States.

(2) For an alien described in paragraph(b)(1) of this section, recordation of the child's entry shall be on Form I–181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence. The carrier of such alien shall not be liable for a fine pursuant to section 273 of the Act.

The key provision here is 8 CFR 211.1(b)(1); the law means that a child born during the temporary visit abroad to a mother who is a lawful permanent resident alien (or a national) of the United States does not need a green card, I-551, visa, Form I–327, Form I–571, or US passport to present to the carrier or to the US border officer provided that the:

  1. the child's birth certificate is presented to the District Director;
  2. child's application for admission to the United States is made within 2 years of the child's birth;
  3. the child is accompanied by the parent who is applying for readmission as a permanent residentupon the first return of the parent to the United States after the birth of the child; and
  4. the accompanying parent is found to be admissibleto the United States.

If the four conditions are met, then upon presentation of the documents, a record of the child's entry shall be made on Form I–181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence and the child enters the US as a lawful permanent resident of the US. 6

Did you know...?

Noncitizens have the ability to seek an immigration benefit through a deceased 'qualifying relative' in certain circumstances.[7]

In the past, a petition could not be approved if the petitioner died while the petition remained pending. In 2009, Congress addressed this scenario with a new statutory provision, INA 204(l). According to the USCIS Policy Manual, Volume 7, Part A, Chapter 9 – Death of Petitioner or Principal Beneficiary, an officer may approve an adjustment application, certain petitions, and related applications adjudicated on or after October 28, 2009, if:

  • The applicant resided in the United States when the qualifying relative died;
  • The applicant continues to reside in the United States on the date of the decision on the pending application; and
  • The applicant is at least one of the following:
    • A beneficiary of a pending or approved immediate relative immigrant visa petition;
    • A beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and any derivative beneficiaries;
    • Any derivative beneficiary of a pending or approved employment-based immigrant visa petition;
    • The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730);
    • A person admitted as a derivative T or U nonimmigrant; or
    • A derivative asylee.

This applies to an adjustment of status application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition or application was denied on or after October 28, 2009, without considering the effect of INA 204(l), and INA 204(l) could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of this new law.8

An applicant who was temporarily abroad when the qualifying relative died does not need to prove that he or she still 'resides' in the United States. Further, the statutory definition of residence does not require the applicant to show that his or her presence in the United States is lawful. Execution of a removal order, however, terminates a noncitizen's residence in the United States.9

For purposes of derivative beneficiaries10, as long as any one surviving beneficiary of a covered petition meets the residence requirement, then the petition may be approved despite the death of the qualifying relative. All the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. It is not necessary for each beneficiary to meet the residence requirements in order to remain eligible to adjust.11

As these three examples show, family law contains some little-known but powerful provisions that can be beneficial to intending immigrants. Family unification is one of the driving forces behind these interesting laws. Let us hope the US government continues to pass these types of common-sense provisions for years to come!

Footnotes

1. Immigration and Nationality Act (INA) Section 322 (8 CFR Section 1433).

2. Please see USCIS Policy Manual, Volume 12, Part H, Chapter 5 at Chapter 5 - Child Residing Outside of the United States (INA 322) | USCIS

3. Id.

4. Id.

5. Id.

6. The child should also have a foreign passport, however, because upon entry, the child's foreign passport will be stamped with a temporary I-551 Permanent Resident Stamp. A Customs and Border Protection (CBP) officer at the port-of-entry will complete and issue a Form I-181 (Memorandum of Creation of Record of Admission for Lawful Permanent Residence), then submit it plus other necessary documentation (including a copy of the child's birth certificate) to U.S. Citizenship and Immigration Services (USCIS) so that a I-551 "green card" can be produced and mailed to the child.

7. "Qualifying relative" is not defined in this specific regulation, but USCIS infers that "qualifying relative" means a person who, immediately before death was:

  • The petitioner of an immediate relative immigrant visa petition;
  • The petitioner or principal beneficiary of a family-sponsored immigrant visa petition;
  • The principal beneficiary of a widow(er)'s self-petition;
  • The principal beneficiary of an employment-based immigrant visa petition;
  • The petitioner of a Refugee/Asylee Relative Petition (Form I-730);
  • The principal person admitted as a T nonimmigrant;
  • A VAWA self-petitioner; or
  • The principal asylee granted asylum.

8. Please see USCIS Policy Manual, Volume 7, Part A, Chapter 9 – Death of Petitioner or Principal Beneficiary and Section 568(d) of Pub. L. 111-83 (PDF), 123 Stat. 2142, 2187 (October 28, 2009). See also INA 204(l).

9. Id.

10. "Derivative Beneficiary" can include, for example, the unmarried grand-child under the age of 21 years of the Petitioner (who had filed an I-130 Petition for their child).

11. Supra.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.