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Green Card Through Special Categories of Family

You may be able to become a permanent resident (get a green card) through the following categories of family members:

1 Battered spouse or Child (VAWA)

2 K Nonimmigrant (includes fiancé(e))

3 Person born to Foreign Diplomat in the United States

4 V Nonimmigrant

5 Widow(er) of a U.S. Citizen

Battered spouse, child or parent

As a battered spouse, child or parent, you may file an immigrant visa petition under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA).The VAWA provisions in the INA allow certain spouses, children, and parents of U.S. citizens and permanent residents (Green Card holders) to file a petition for themselves, without the abuser’s knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing. The VAWA provisions, which apply equally to women and men, are permanent and do not require congressional reauthorization.

Help is also available from the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD). The hotline has information about shelters, mental heath care, legal advice and other types of assistance, including information about filing for immigration status.

Eligibility Requirements for a Spouse

1 You are:

1 married to a U.S. citizen or permanent resident abuser

2 or

1 your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing, or

2 your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing due to an incident of domestic violence, or

3 you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.

3 You:

1 have been abused in the United States by your U.S. citizen or permanent resident spouse, or

2 have been abused by your U.S. citizen or permanent resident spouse abroad while your spouse was employed by the U.S. government or a member of the U.S. uniformed services, or

3 are the parent of a child who has been subjected to abuse by your U.S. citizen or permanent spouse.

4 You entered into the marriage in good faith, not solely for immigration benefits.

5 You have resided with your spouse.

6 You are a person of good moral character.

Eligibility Requirements for a Child

1 You:

1 are the child of a U.S. citizen or permanent resident abuser

2 were the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence

3 have been abused in the United States by your U.S. citizen or permanent resident parent

4 have been abused by your U.S. citizen or permanent resident parent abroad while your parent was employed by the U.S. government or a member of the U.S. uniformed services

5 have resided with the abusive parent

6 have evidence to prove your relationship to your parent

7 must provide evidence of good moral character if you are over the age of 14

Eligibility Requirements for a Parent

1 You are the parent of a U.S. citizen son or daughter or were the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence or died within 2 years prior to filing

2 You have been abused by your U.S. citizen son or daughter

3 You have resided with the abusive son or daughter

4 You are a person of good moral character

Working in the United States

If you have an approved Form I-360 and have been placed in deferred action, you are eligible to apply to work in the United States. To apply to work in the United States, you must file the Form I-765, Application for Employment Authorization, with the Vermont Service Center.
Your children listed on your approved Form I-360, may also apply for work authorization.

Permanent Residence (Green Card)

If you have an approved Form I-360, you may be eligible to file for a green card. Your children listed on your approved Form I-360 may also be eligible to apply for a green card. For information about filing for a green card, see the Immigration Options for Victims of Crimes Brochure .

K Nonimmigrant

The K-visa categories is available for fiancé(e)s of U.S. citizens and their accompanying minor children (K-1 and K-2 visas). U.S. citizen fiancé(e)s file for their intended spouse on Form I-129F, Petition for Alien Fiancé(e).

The Legal Immigration and Family Equity (LIFE) Act amendments of 2000 added the K-3 visa category for foreign spouses and K-4 category for stepchildren of U.S. citizens. The LIFE Act requires applicants to apply for a K-3 visa in the country where their marriage to the U.S. citizen petitioner occurred, or in the event the petitioner and applicant were married in the United States, the country of the applicant’s current residence. After arrival in the United States, they could then complete their processing for permanent residence.

All K nonimmigrants are required to file Form I-485, Application to Register Permanent Residence and Adjust Status, after arrival to adjust status as a permanent resident of the United States.

K nonimmigrants may only adjust status as a permanent resident through the same U.S. citizen (fiancé(e), spouse, or stepparent) that petitioned for them to receive their K visa status.

Eligibility Criteria

You may be eligible to receive a green card as a K nonimmigrant fiancé(e), spouse, or his/her minor child if you:

1 Are the beneficiary of an immigrant visa petition that was filed by a U.S. citizen for their spouse or fiancé(e), or the minor children of that spouse/fiancé(e)

2 Have been admitted to the United States as a K Nonimmigrant

3 Met the requirement to marry the U.S. citizen fiancé(e) within 90 days of entry, if a K-1 visa holder

4 Are eligible to adjust status as the spouse or child of a U.S. citizen, or the minor child of a K-1 visa holder

5 Have an immigrant visa immediately available

6 Are admissible to the United States

Person Born in the United States to a Foreign Diplomat

A person born in the United States to a foreign diplomatic officer accredited to the United States is not subject to the jurisdiction of United States law. Therefore, that person cannot be considered a U.S. citizen at birth under the 14th Amendment to the United States Constitution. This person may, however, be considered a permanent resident at birth and able to receive a green card through creation of record.

To determine whether your parent is a foreign diplomatic officer, your parent’s accredited title must be listed in the State Department Diplomatic List, also known as the Blue List. This list includes:

1 Ambassadors

2 Ministers

3 Charges d’affaires

4 Counselors

5 Secretaries and attaches of embassies and legations

6 Members of the Delegation of the Commission of the European Communities

It also includes those with comparable diplomatic status and immunities assigned to the United Nations or to the Organization of American States and other persons who have comparable diplomatic status.

For more information, refer to Section 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act (INA) and 8 CFR 101.3, 101.4 and 264.2.

Eligibility Criteria

You may be eligible to receive a green card (permanent residence) through creation of record if you meet all of the following conditions:

1 You were born in the United States to a foreign diplomat

2 You have had residence in this country continuously since birth

3 You have not abandoned your residence in the United States

V Nonimmigrant

The Legal Immigration Family Equity (LIFE) Act provisions of 2000 created the V nonimmigrant category that allow the spouse or child of a permanent resident to live and work in the United States while waiting to obtain immigrant status. To qualify for a V visa, the spouse or child of the permanent resident needs a Form I-130, Petition for Alien Relative, filed on their behalf on or before December 21, 2000 by the permanent resident relative. The spouse or child also must have been waiting for at least 3 years after the form was filed for their immigrant status—either because a visa number was not available or because we had not yet adjudicated the Form I-130 or Form I-485, Application to Register Permanent Residence or Adjust Status. In most cases, V nonimmigrants will eventually adjust status as the spouse or child of a permanent resident when a visa number becomes available and the Form I-130 and Form I-485 have been adjudicated.

For more information, see Sections 101(a)(15)(V), 214(q) and 245 of the Immigration and Nationality Act (INA) and 8 CFR 214.15, 245 and 248.

Eligibility Criteria

You may be eligible to receive a green card as a V nonimmigrant if you:

1 Are the beneficiary (as the spouse or child) of an immigrant visa petition that was filed by a permanent resident by December 21, 2000

2 Obtained V status either in the United States or abroad and have continuously maintained your status while in the United States

3 Continue to remain eligible to adjust status as the spouse or child of a permanent resident (or U.S. citizen, if your spouse or parent has now naturalized)

4 Have an immigrant visa immediately available

5 Are admissible to the United States

Widow(er)

Widows or widowers who were married to U.S. citizens at the time of the citizen’s death may apply for a green card. For further information, see sections 201(b)(2)(A)(i) and 204(a)(1)(A) of the Immigration Nationality Act (INA) and 8 CFR 204.2(i)(1)(iv) and 245. Until October 28, 2009, this benefit was available to only those married to the deceased citizen for at least two years at the time of the deceased citizen’s death, in order to immigrate as the widow(er) of a citizen. Effective October 28, 2009, this requirement was removed.

You must be legally married to the citizen, and must have entered the marriage in good faith, and not solely to obtain an immigration benefit.

Pending or Approved Immigrant Petition

If you were married to a U.S. citizen who had filed Form I-130, Petition for Alien Relative for you before he or she died, you do not need to file anything. The Form I-130 will be automatically converted to a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. If you have children (unmarried and under age 21), they may be included on the Form I-360 regardless of whether your deceased spouse had filed a petition for them.To qualify, you must not have have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if you have remarried.

Pending or Approved Immigrant Petition

If you were married to U.S. citizen before the citizen’s death, but had no I-130 petition filed on your behalf, you can self-petition as an “immediate relative” on Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if yout have remarried. You must file within 2 years of the citizen’s death.

If your citizen spouse did not have a Form I-130 pending at the time of death, you must file the Form I-360 no more than 2 years after the death of your citizen spouse. If, however, you were married less than 2 years, and your citizen spouse died before October 28, 2009, you must file your Form I-360 no later than October 28, 2011.

Widow(er) of a U.S. Military Member

For surviving spouses of deceased U.S. military members who were killed in combat, there are separate immigration benefits under section 1703 of Public Law 108-136. Individuals in these categories may self-petition for “immediate relative” status on Form I-360.

Eligibility Criteria

You may be eligible to receive a green card through widow/widower status if you:

1 Were married to a U.S. citizen at the time he or she passed away

2 Either have a pending or approved Form I-130 or you have filed a Form

3 I-360 within 2 years of your spouse’s death (or no later than October 28, 2011, if your citizen spouse died before October 28, 2009, and you were married less than 2 years).

4 Are not remarried

5 Were not divorced or legally separated from your spouse at the time he or she died

6 Are able to prove that you were in a bona fide marital relationship until the time of your spouse’s death

7 Are admissible to the United States

Children of Widow(er) of a U.S. Citizen

Unmarried children under the age of 21 (known as “derivatives”) may be included on your immigration petition. As “immediate relatives,” your derivative children are granted benefits of the Child Status Protection Act, which “freezes” their ages as of the date of the principal’s filing of Form I-130 or I-360, whichever is applicable. This provision prevents them from aging-out if they turn 21 prior to adjudication of their adjustment-of-status or visa application. They must, however, continue to meet any other additional filing requirements.

It is of significant importance that an experienced and knowledgeable immigration lawyer is retained to protect your interest as that can make all the difference in the world. At Bhagwati and Associates, P.L.L.C., it is our top most priority to protect our clients’ best interest by providing experienced, knowledgeable, and aggressive representation, while making sure that each of our client gets the successful results and no client of ours is unjustly treated, deported or removed from the United States or is precluded from coming to the United states.

We welcome any feedback, questions or comments






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