Immigration Q&A: Hi, most of my family is living in the U.S., so I really want to find a way to immigrate through my family. I am 22 yrs old, currently here in Miami for the Christmas holiday and I have to go back home to finish my last year of my university, but I might want to change to a college here. Is there anything I can right now to get started? Do I need an attorney to get a student visa?

Answer: Well, that’s a really big question. Since I don’t know what relationship your family members in the U.S. have to you, for the benefit of our readers, I’ll go through all the possible categories with the timing (waiting line) for each:

U.S. CITIZENS SPONSORING FAMILY MEMBERS:

If you have a parent, brother /sister, spouse or adult child in the U.S. who is a U.S. Citizen, a family immigration petition can be filed for you. The waiting time for an Immigrant visa depends upon what your relationship is to your relative. For instance, if you have a U.S. Citizen spouse or an adult child, there is no waiting time at all, just regular USCIS and consular processing time (about one year). Also, if you have a U.S. tourist visa and you either marry a U.S. Citizen (real marriage) or you have U.S. Citizen adult child, you can stay in the U.S., file for your residency here and wait inside the U.S. to obtain your Green Card (usually about 6 months to one year).

However, if you have a U.S. Citizen parent and you are single, then you would be in the 1^st Preference category (unmarried daughter of a US citizen) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in January of 2002 for most countries. That means a wait of about six years or so if the petition is being filed now.

If you have a U.S. Citizen parent and you are married, then you would be in the 3rd Preference category (married daughter of a US citizen) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in April of 2000 for most countries. That means a wait of about seven to eight years or so, if the petition is being filed now.

Brother/Sister, called “sibling” petitions take the most time of all, in the 4^th Preference category (sister or brother of a US citizen) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in June of 1997 for most countries. That means a wait of about eleven to twelve years or so if the petition is being filed now.

PERMANET RESIDENTS (“GREEN CARD” HOLDERS) SPONSORING FAMILY MEMBERS:

If you have a spouse or parent in the U.S. who is a Permanent Resident (“Green Card” holder) a family immigration petition can also be filed for you. And again, the waiting time for an Immigrant visa depends upon what your relationship is to your relative.

If you have a Permanent Resident spouse then you would be in the 2A category (Spouse of a Permanent Resident “Green Card” holder) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in January of 2003. That means a wait of about five years or so if the petition is being filed now.

If you have a Permanent Resident parent and you are SINGLE, then you would be in the 2B category (unmarried, adult daughter of Permanent Resident “Green Card” holder) now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in October of 1998. That means a wait of about nine to ten years or so if the petition is being filed now. However, if you were to get married before your parent becomes a U.S. Citizen, the family petition would be cancelled, since there is no immigration category for the adult, married child of a Permanent Resident, only single adult children.

Student Visa (F-1):
If you were like to pursue your education here, you can apply to a U.S. college, take the TOEFL test, get the I-20 issued, then apply to the USCIS to change your status to a Student Visa (F-1) while you are still here, without going back, since it is often difficult being issued a student visa from a U.S. Consulate abroad. Some schools will assist you in applying for F-1 visas with the USCIS and some will not, therefore it depends upon which school you apply to and how helpful they are in making sure that your application is properly prepared and complete, as to whether you need the assistance of an attorney or not. Good luck!

Question: I just became a US Citizen last week and I am planning on marrying my fiancée who lives with me. She said that she entered the U.S. legally and then later applied for an extension of her I-94 but it got denied, so she and her kids stayed in the U.S. anyway. Once we marry next month, will I be able to file for her Green Card or is she ineligible because she is not in legal status? Also, she has two children, one 6 and one 9, can I apply for their Green Cards as well?

Answer: If you are a US citizen and your fiancé entered legally, (with inspection by an immigration officer-being issued an I-94 card), then she should be eligible to adjust to a green card even though she has failed to maintain legal status. This is also true of her children. USCIS regulations allow U.S. Step-parents to petition for minor children of their spouses, as long as the step-parent relationship is established before the step-child’s 18^th birthday. This means that as long as the marriage takes place before the children turn age 18, you as the step-parent can sponsor the children for their Green Cards.

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*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understood that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call The American Immigration Lawyer’s Association's Lawyer Referral Service at:1-800-954-0254.