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Immigrant Visas FAQ

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Should I get a lawyer to help me with my case?

The decision as to whether or not to hire a lawyer or other representative is yours alone. We cannot tell you whether or not to obtain representation, nor can we recommend any specific lawyers.  If you do hire an attorney or other representative, that person may accompany you to your visa interview but may not answer questions on your behalf.  You, the applicant, must answer the consular officer’s questions.

What is the principal beneficiary of a petition and what is a derivative beneficiary?

In a family-based immigrant visa case, the principal beneficiary of a petition is the person on whose behalf the petition was filed, that is, the person listed on the right side of the front of Form I-130 (Petition for Alien Relative). A derivative beneficiary is the spouse or child of the principal beneficiary. A preference family-based case may have many derivative beneficiaries in addition to the principal beneficiary, and all of the beneficiaries (principal and derivatives) share the same petition and the same case number. There are no derivative beneficiaries in immediate relative family-based cases, which means that each applicant must have his or her own petition and individual case number.

I received a CR-1 or CR-2 immigrant visa. What does that mean?

You and the petitioner must file a Form I-751 (Petition to Remove the Conditions on Residence) with the U.S. Citizenship and Immigration Services Service Center in the United States with jurisdiction over your state of residence within the 90-day period immediately preceding the second anniversary of the date you were first admitted to the United States as a conditional permanent resident. If the I-751 is not filed within this period, your conditional permanent resident status will be terminated automatically and you will be subject to deportation from the United States.

What does the Child Citizenship Act do?

The Child Citizenship Act of 2000 is a law that amended Section 320 of the Immigration and Nationality Act to confer automatic U.S. citizenship upon certain categories of children born abroad upon their admission to the United States as a legal permanent resident.  If the consular officer determines that the Child Citizenship Act applies, we will give the applicant our Child Citizenship Act Information Sheet.

Please see 9 FAM 40.41 N3.4-1 for more information concerning the Child Citizenship Act.

The person who filed the petition on my behalf is not working. Does he or she still need to submit an Affidavit of Support?

Yes. If you are subject to the I-864 (Affidavit of Support Under Section 213A of the Act) requirement, as almost all immigrant visa applicants in Colombia are, the petitioner must submit an I-864 for you. Otherwise, the consular officer will not be able to issue you a visa. This requirement applies even if the petitioner is not working or is working but does not earn enough money to support you. In these circumstances, your petitioner may find a joint sponsor who is willing to file an I-864 for you, or he or she may have a household member who is willing to file a Form I-864A (Contract Between Sponsor and Household Member).

Remember that every I-864 and I-864A must be accompanied by proof that the filer is a U.S. citizen or legal permanent resident, and the most recent U.S. tax form as of when the I-864 or I-864A was signed. If the petitioner is not working, he or she must state this on the I-864.

If the person has not filed a U.S. tax return, regardless of the reason, he or she must explain in writing why not. The petitioner may find it convenient to use our No Taxes Statement for this purpose.

Please see 9 FAM 40.41 for more information concerning the I-864 and the public charge ineligibility.

I am married to a U.S. citizen and am waiting for my adjustment of status interview in the United States. My child, who is my spouse's stepchild, is in Colombia and is about to have a legal permanent resident visa interview. Do I have to become a legal permanent resident before my child can be issued an immigrant visa?

No. There is no requirement that you ever become a legal permanent resident. However, in order for your child to qualify as your spouse's stepchild, the consular officer must be convinced that your marriage is legitimate for immigration purposes. The most direct way for the consular officer to know that the marriage is bona fide is for U.S. Citizenship and Immigration Services of the Department of Homeland Security to have adjusted your status to that of legal permanent resident. If you are not yet a legal permanent resident, the consular officer may require alternative evidence (e.g., joint rental agreements, bank statements, phone bills, photographs, etc.). You and your spouse may even be invited to the Consular Section for an interview with the consular officer.

Please see 9 FAM 40.1 N2.2 for more information concerning the legal definition of stepchild.

What if I get married after I receive my immigrant visa but before I am admitted to the United States as a legal permanent resident?

If you are issued an immigrant visa under a category that requires you to be unmarried, and you marry after receiving the visa but before being admitted to the United States, you will be subject to exclusion from the United States. If you have questions about your particular situation, please contact us.

Please read Form OF-237 (Statement of Marriageable Age Applicant).

What happens if the petitioner dies before the principal beneficiary has immigrated to the United States?

If the petitioner dies before the principal beneficiary has immigrated to the United States, the petition is automatically revoked pursuant to 8 CFR 205.1(a)(3). This means that the consular officer will not be able to issue a visa to any of the beneficiaries of the petition and will be required to return the petition to the Department of Homeland Security (DHS).

If there are compelling humanitarian circumstances, the consular officer may recommend that DHS reinstate the petition. Alternatively, the applicant may contact directly the DHS office that approved the petition to request that it be reinstated for humanitarian reasons. If DHS reinstates the petition, the consular officer will contact the applicant(s) soon thereafter.

Please see 9 FAM 42.42 PN2 more information on humanitarian reinstatement.

What happens if the petitioner dies after the principal beneficiary has immigrated to the United States?

Eligibility of derivative applicants seeking to follow to join a principal beneficiary who has already acquired legal permanent resident status is dependent on the continuing legal permanent resident status of the principal, not on the status of the petitioner. Therefore, if the petitioner dies after the principal applicant has already become a legal permanent resident and one or more derivative applicants seek to follow to join the principal applicant, the derivatives retain eligibility to follow to join despite the death of the petitioner. Please see 8 CFR 213a.2(f) for information concerning the Form I-864 (Affidavit of Support Under Section 213A of the Act) requirement in such circumstances.

What happens to the derivative beneficiary's case if the principal beneficiary dies?

If the principal beneficiary dies at any time before the derivative beneficiary immigrates to the United States, the consular officer will not be able to issue a visa to the derivative beneficiary.  Humanitarian reinstatement does not apply in such a case, though humanitarian parole may be an option.  Please see 9 FAM 42.1 N4 for more information on humanitarian parole.

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Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 30 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..
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