가족 이민 영주권 신청

미국에서영주권을받는방법은크게두가지로나눠집니다: 1) 가족에근거한영주권신청과 2) 취업에근거한영주권신청. 가족에근거해영주권을받을수있는경우로는또다시크게두가지로나눠집니다.

첫번째는미국의시민권자의배우자와21세미만의자녀, 그리고 21세이상인미국시민권자부모의자격이있는분들이영주권을신청할수있습니다. 위카테고리에들어가게되면두번째의경우와다르게연간비자의제한이없습니다. 그래서위의자격이있으신분들은보통의서류신청부터승인에걸리는시간외에는따로이용가능한비자가있을때까지, 즉본인의“priority date”를위해몃년씩기다릴필요가없다는것입니다.

여기첫번째카테고리에서좀주의를해야할점이있습니다. 미국이민법에서위세가지에해당하는분들을“immediate relatives”고하는데굳이한국어로번역하여직계가족이라하면혼란의여지가있을수있습니다. 그런이유는이“immediate relatives”에는미국시민권자의직계존속이나직계비속의범위가다포함되지않기때문입니다. 다시말하면, 미국시민권자의할아버지나할머니또는손자나손녀는이카테고리에포함되지않기때문에, 미국시민권자라하여도본인의할아버지나할머니또는손자손녀를위해이첫번째카테고리를이용하여영주권스폰서하여줄수없다는것입니다.

두번째로카테고리에는 1 부터 4순위를정하여각순위마다영주권을신청할때까지보통기다리는시간이다름니다. 제 1 순위부터 4 순위까지차례대로나열하면다음과같습니다: 제 1 순위는미국시민권자의나이제한없이미혼자녀(2014년 6월현재약 7년의대기기간); 제 2 순위는영주권자의배우자와 21세이하의미혼자녀 (2A) 그리고영주권자의21세이상미혼자녀 (2B); 제 3 순위는시민권자의기혼자녀(2014년 6월현재약 9년대기기간) ; 마지막으로제 4 순위에해당하는분들은 21세이상인미국시민권자의형제자매입니다.

이상과같이보통가족에근거해서영주권을신청한방법은이두가지의카테고리를이용합니다. 하지만이에근거한영주권신청시주의해야할점이있습니다. 이러한문제점은보통가족임을증명하는청원서를신청(I-130 petition)한후와최종영주권승인을받는시점사이에일어나는현상입니다. 첫번째카테고리를가지고예를들어보겠습니다. 미국의시민권자가21세미만의미혼자녀를위해서가족관계증명청원서를신청하였습니다. “Immediate relatives”로영주권신청하게되면최종적으로영주권을받는데소요되는기간이 몇개월에서몇년까지걸릴수있습니다. 그러나만약그청원서를신청한후그미혼자녀가영주권을받기전에결혼을하는경우가있습니다. 이러한경우에는그자녀는두번째카테고리의제 3 순위로떨어지게되어 2014년 6월현재약 9년을기다려야하는결과가되므로주의를하셔야할것입니다.

“Immediate relative”에근거해가족증명 I-130을신청한후, 서류진행절차중에, 그미혼자녀가결혼은하지않았으나, 21세이상이되어버린경우입니다. 2002년 8월전에는이러한경우더이상“Immediate relative”로서의자격이상실되어우선순위카테고리로넘어가많게는몇년을기다려야하는상황이발생하였습니다. 그러나 2002년 8월에새법인“CSPA”가 (Child Status Protection Act; Pub. L. No. 107-208, 116 Stat. 927 (Aug, 2002)) 제정되어이제는더이상그러한불이익을걱정할필요가없습니다.

예를들어보겠습니다. 만약“immediate relative”카테고리에근거해 21세이하인자녀영주권신청을위해 I-130을신청하였습니다. 그러나그신청서승인이떨어지기전에그자녀가 21세이상이되어버렸습니다. 그러면원칙적으로그자녀는제 1 순위로떨어져현재약 7년을기다려야하는상황이되게됩니다. 하지만이러한경우위법이적용이되어 I-130을신청한후자녀가성년이되더라도“immediate relative”카테고리의자녀로남게되어서류진행절차에걸린시간을제외하고는“priority date”을위해따로몇년씩기다릴필요가없다는것입니다. 그러나여기서도주의를하셔야할점은결혼을하지않았어야한다는것입니다.

이번엔반대로우선순위중제 2 순위카테고리에근거해미국영주권자가 21세이하의자녀를위해영주권신청절차를진행하는경우를가지고예를들어보겠습니다. 만약영주권자가 18세인아들을영주권을받게해주기위해 I-130 (가족증명신청서)를신청하였습니다. 그러던중그영주권자가시민권신청자격이되어시민권을얻습니다. 그시민권을딴시점은그아들이 20세라가정하겠습니다. 이러한경우는 CSPA에근거해그아들은“immediate relative”로서의자격이되어더이상 7년의세월을기다릴필요없어집니다. 왜냐면이러한경우는이민국에서는부모가시민권을딴시점에그아들이몃살이었냐를보기때문입니다. 그래서만약그아들이 21세가넘는다할지라도계속그아들은“immediate relative”카테고리에근거해서영주권신청절차를진행할수있다는것입니다.

그럼이제는배우자에대해서설명해보겠습니다. 배우자가시민권자와결혼을한후 2 년이지나지않아그시민권자배우자가사망을한경우입니다. 2009년에아래의법이통과되기전에는시민권자와결혼한후, I-130 (가족증명청원서) 제출하여승인을기다리고있던중그시민권자가사망한한경우, 만약그결혼이 2 년이넘지않았으면그가족증명청원서가거절되었습니다. 그이유는시민권자가사망하면그결혼은더이상유효하지않는다는것이었습니다. 또한, 가족이민청원서는승인되었으나실제영주권을받기전에그시민권자인배우자가사망을하게되더라도그승인된가족이민청원서는자동으로무효가되는안타까운상황이발생되었습니다.

이러한문제를해결하기위해제정된법이 2009년통과를하였습니다. (Fiscal Year 2010 Homeland Security Appropiration Act (H.R. 2892), Pub L No. 111-83.) 새로추가된이민법에서일정조건을충족시키면, 그시민권자배우자와의결혼이 2 년이지나지않았다하더라도, 그외국국적의배우자가혼자영주권신청절차를진행할수있게되었습니다. ((INA § 201(b)(2)(A)(i); § 204(a) 참조)

그요건으로는시민권자인배우자가사망당시에위장결혼이아니였어야하고또합법적인결혼상태를유지하고있엇어야합니다. 그리고그시민권자의사망시점으로부터 2 년내에영주권신청을하여야합니다. 여기서주의점은영주권을받기전에다시재혼을하게되면영주권승인을받을수없다는것입니다. 그래서영주권을받은후에재혼을하는것이그위험성을피하는방법일겁니다.

1. Green Card for an Immediate Relative of a U.S. Citizen

To promote family unity, immigration law allows U.S. citizens to petition for certain qualified relatives to come and live permanently in the United States. Eligible immediate relatives include the U.S. citizen’s:

Spouse
Unmarried child under the age of 21
Parent (if the U.S. citizen is over the age of 21)

Immediate relatives have special immigration priority and do not have to wait in line for a visa number to become available for them to immigrate because there are an unlimited number of visas for their particular categories.

For other qualified relatives that a U.S. citizen may petition for, see our Green Card for a Family Member of a U.S. Citizen page.

Get a Green Card While Inside the United States

One Step Process
Certain people are eligible to apply for a green card (permanent residence) while inside the United States. An immediate relative relationship allows you to apply on Form I-485, Application to Register Permanent Residence or Adjust Status, to become a permanent resident at the same time your U.S. citizen petitioner files Form I-130, Petition for Alien Relative. For more information on filing for permanent residence in one step, see our Concurrent Filing page.

Two Step Process
You still have the option to file your I-485 application any time after your petitioner files a Form I-130, for you, as long as it has not been denied. Generally, you will need to submit a copy of Form I-797, Notice of Action, with your Form I-485, that shows the Form I-130 petition is either pending or approved.

Step One – Your U.S. citizen immediate relative must file the Form I-130 for you and it must be either pending or approved.
Step Two – After you receive Form I-797, Notice of Action, showing that the Form I-130 has either been received by us or approved, then you may file Form I-485. When you file your I-485 application package, you must include a copy of the Form I-130 receipt or approval notice (the Form I-797). For more information on filing for permanent residence, see our Adjustment of Status page.

Get a Green Card While Outside the United States

If you are currently outside the United States and are an immediate relative of a U.S. citizen, you can become a permanent resident through consular processing. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-130 petition when a visa is available. You may then travel on the visa and will officially become a permanent resident when admitted at a U.S. port of entry. For more information on consular processing for immediate relatives of U.S. citizens, see the “Consular Processing” link to the left under “Green Card Processes & Procedures.” The Department of State will notify you when you are eligible to apply for an immigrant visa. If you do not apply for an immigrant visa within one year following notification from the Department of State, your petition may be terminated.

Things to keep in mind:

Turning 21 years of age. When an immediate relative child of a U.S. citizen reaches the 21 years of age, he or she generally will become a “first preference” (F1) category son or daughter (over 21 years of age) of a U.S. citizen, and will no longer have a visa immediately available. This change may result in a significant delay in adjustment of status or visa processing because he or she will now need to wait for an immigrant visa to become available. For more information, see our Visa Availability & Priority Dates page.
Child Status Protection Act. In certain cases, the Child Status Protection Act (CSPA) may allow you to retain the classification of “child” even if you have reached age 21. Generally, your age is “frozen” as of the date your U.S. citizen parent files Form I-130 for you. To determine if the CSPA applies to you, see the Child Status Protection Act page
Getting Married. If an immediate relative child under age 21 gets married, he or she can no longer be classified as an “immediate relative” and will become a “third preference” (F3) category married son or daughter of a U.S. citizen and a visa would no longer be immediately available. You must notify us of any change in your marital status after Form I-130 has been filed for you and prior to becoming a permanent resident or obtaining an immigrant visa.

2. Green Card for a Family Member of a U.S. Citizen

Is Your Family Member an “Immediate Relative?”

“Immediate relatives” of a U.S. citizen are defined as a spouse, unmarried children under the age of 21, and parents. Immediate relatives always have a visa number immediately available. To learn more, see the “Green Card for an Immediate Relative of a U.S. Citizen” page.

Family Preference Category

If the family member of the U.S. citizen is not an immediate relative, then the U.S. citizen may still be able to sponsor them via what is called a “family preference category.” Eligible relatives include:

Unmarried sons or daughters over the age of 21
Married child(ren) of any age
Brothers and sisters (if the U.S. citizen petitioner is over the age of 21)

Congress has limited the number of relatives who may immigrate under these categories each year so there is usually a waiting period before an immigrant visa number becomes available.

Get a Green Card While Inside the United States

If you are currently in the United States and are one of the specified categories of relatives of a U.S. citizen in a preference category, you may be able to become a permanent resident in two steps.

Step One – Your U.S. citizen family member (sponsor) must file the Form I-130, Petition for Alien Relative, for you and it must be approved. You must wait for your priority date in your immigrant visa category to become current. Your priority date is the date when the Form I-130 is properly filed (with correct fee and signature) on your behalf by your U.S. citizen relative. For more information on priority dates, see the “Visa Availability & Priority Dates” page.
Step Two – Once the priority date in your visa category is current, you may file for Adjustment of Status with Form I-485, Application to Register Permanent Residence or Adjust Status. Adjustment of Status is the process you go through to become a Permanent Resident. For more information, see the “Adjustment of Status” page.

Get a Green Card While Outside the United States

If you are currently outside the United States and are one of the specified categories of relatives of a U.S. citizen in a preference category, you can become a permanent resident through consular processing. Consular processing is when we work with the U.S. Department of State to issue a visa on an approved Form I-130 petition when a visa is available. In this process the Department of State will issue you a visa. If approved, you may then travel on the visa and will officially become a permanent resident when admitted at a U.S. port of entry. For information on consular processing see the “Consular Processing” page.

Things to keep in mind:

The Child Status Protection Act (CSPA). In certain cases, the CSPA may allow you to retain the classification of “child” even if you have reached age 21. Generally, your age is “frozen” as of the date your U.S. citizen parent files Form I-130 for you. To determine if the Child Status Protection Act (CSPA) applies to you, see the “Child Status Protection Act” page.
Getting Married. If you are the unmarried son or daughter of a U.S. citizen and you get married prior to becoming a permanent resident, then you no longer qualify as an “Unmarried Son or Daughter of a U.S. Citizen” and will convert to the category of “Married Son or Daughter of a U.S. Citizen.” This change in categories may result in a significant delay in your immigrant visa becoming available. You must notify us of any change in your marital status after Form I-130 has been filed for you and prior to becoming a permanent resident or obtaining an immigrant visa. For more information on priority dates, see the “Visa Availability & Priority Dates” page.

3. Green Card for a Family Member of a Permanent Resident

To promote family unity, immigration law allows permanent residents of the United States (green card holders) to petition for certain eligible relatives to come and live permanently in the United States. A permanent resident may petition for his/her spouse and unmarried child(ren) of any age to immigrate to the United States. Congress has limited the number of relatives who may immigrate under these categories each year so there is generally a waiting period before an immigrant visa number becomes available. If your family relationship qualifies you as an eligible relative of a U.S. permanent resident, then you are in what is called a “family preference category.”

This page discusses the steps required to get a green card for relatives of a permanent resident (in a Family 2nd Preference category).

Get a Green Card While Inside the United States

If you are currently in the United States and are one of the specified categories of relatives of a permanent resident, you may be able to become a permanent resident in two steps.

Step One – Your permanent resident relative must file Form I-130, Petition for Alien Relative, for you and it must be approved. You must wait for your priority date in your immigrant visa category to become current. Your priority date is the date when the Form I-130 is properly filed (with correct fee and signature) on your behalf by your U.S. permanent resident relative. For more information on priority dates, see the “Visa Availability & Priority Dates” page.
Step Two – Once the priority date in your visa category is current, you may file for adjustment of status with Form I-485, Application to Register Permanent Residence or Adjust Status. Adjustment of status is the process you go through to become a permanent resident. For more information, see the “Adjustment of Status” page.

Get a Green Card While Outside the United States

If you are currently outside the United States and are one of the specified eligible categories of relatives of a permanent resident, you can become a permanent resident through consular processing. Consular processing is when we work with the U.S. Department of State to issue a visa on an approved Form I-130 petition when a visa is available. In this process the Department of State will issue you a visa. If approved, you may then travel on the visa and will officially become a permanent resident when admitted at a U.S. port of entry. For more information, see our consular processing page.

Things to keep in mind:

Turning 21 years of age. If you are an unmarried child of a permanent resident, turning 21 years of age may delay the process of becoming a permanent resident or obtaining an immigrant visa. You will no longer qualify as an “Unmarried Child of a Lawful Permanent Resident” (F2A) and will convert to the category of an “Unmarried Son or Daughter of a Lawful Permanent Resident (F2B).” This change in categories may result in a significant delay in your immigrant visa becoming available. For more information on priority dates, see the “Visa Availability & Priority Dates” page.
The Child Status Protection Act (CSPA). In certain cases, the CSPA may allow you to retain the classification of “child” even if you have reached age 21. To determine if the Child Status Protection Act (CSPA) applies to you, see the “Child Status Protection Act” page.
Getting Married. If you are the unmarried son or daughter of a permanent resident, and you get married prior to becoming a permanent resident, you no longer qualify for permanent residence through your permanent resident family member. There is no visa category for a married child of a permanent resident. Note: You must notify USCIS of any change in your marital status after Form I-130 has been filed for you and prior to becoming a permanent resident or obtaining an immigrant visa.
Permanent Resident Relative Becomes a U.S. citizen. If the permanent resident relative that petitioned for you becomes a U.S. Citizen, your preference category would change and a visa may be available sooner. This is because you would now be getting a green card as a relative of a U.S. citizen. For more information on getting a green card through a U.S. citizen relative, see the “Green Card for a Family Member of a U.S. Citizen” and “Green Card for an Immediate Relative of a U.S. Citizen” pages.

4. Battered Spouse, Children & Parents

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 certain spouses and children of 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 health care, legal advice and other types of assistance, including information about filing for immigration status. For more information, visit the National Domestic Violence website.

Those Eligible to File

Spouse: You may file for yourself if you are, or were, the abused spouse of a U.S. citizen or permanent resident. You may also file as an abused spouse if your child has been abused by your U.S. citizen or permanent resident spouse. You may also include on your petition your unmarried children who are under 21 if they have not filed for themselves.
Parent: You may file if you are the parent of a U.S. citizen, and you have been abused by your U.S. citizen son or daughter.
Child: You may file for yourself if you are an abused child under 21, unmarried and have been abused by your U.S. citizen or permanent resident parent. Your children may also be included on your petition. You may also file for yourself as a child after age 21 but before age 25 if you can demonstrate that the abuse was the main reason for the delay in filing.

Eligibility Requirements for a Spouse

Qualifying spousal relationship:

o You are married to a U.S. citizen or permanent resident abuser or

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

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

o 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.

You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse:

o You have been abused by your U.S. citizen or permanent resident spouse, or

o your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse.

You entered into the marriage in good faith, not solely for immigration benefits.
You have resided with your spouse.
You are a person of good moral character.

Eligibility Requirements for a Child

Qualifying parent/child relationship:

o You are the child of a U.S. citizen or permanent resident abuser, or

o you are 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.

You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.
You have resided with your abusive parent.
You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.

Eligibility Requirements for a Parent

Qualifying parent/son or daughter relationship:

o You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed, or

o you are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence, or

o you are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.

You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.
You have resided with the abusive son or daughter.
You are a person of good moral character.

Filing Process

You must complete the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, including all supporting documentation.
You must file the form with the Vermont Service Center (VSC).
If you are living abroad at the time of filing the self-petition, you may file Form I-360 if:

o the abuser is an employee of the U.S. government,

o the abuser is a member of the uniformed services, or

o you were subjected to battery or extreme cruelty in the United States.

If you are a self-petitioning spouse or child and you meet all filing requirements, you will receive a notice (Prima Facie Determination Notice) valid for 150 days that you can present to government agencies that provide certain public benefits to certain victims of domestic violence.
If your Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant is approved and you do not have legal immigration status in the United States, we may place you in deferred action, which allows you to remain in the United States

Working in the United States

If you have an approved Form I-360, you are eligible to apply to work in the United States. In addition, 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. For more information on working in the United States, visit our Working in the U.S. page.

Permanent Residence (Green Card)

If you have an approved Form I-360, you may be eligible to file for a green card. If you are a self-petitioning spouse or child, 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

5. V Nonimmigrant

Green Card for a 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:

Are the beneficiary (as the spouse or child) of an immigrant visa petition that was filed by a permanent resident by December 21, 2000
Obtained V status either in the United States or abroad and have continuously maintained your status while in the United States
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)
Have an immigrant visa immediately available
Are admissible to the United States

Application Process

To obtain a green card, you need to file Form I-485.

Supporting Evidence for the Form I-485

You should submit the following evidence and documentation with your application:

Two passport-style photos
Form G-325A, Biographic Information
Copy of government issued photo identification
Copy of birth certificate
Copy of passport page with nonimmigrant visa (if applicable)
Copy of passport page with admission (entry) or parole stamp (if applicable)
Form I-94, Admission/Departure record (if applicable)
Form I-693, Report of Medical Examination and Vaccination Record
Form I-864, Affidavit of Support
Form I-797, Notice of Action, showing the date you were granted V nonimmigrant status (based on Form I-539, Application to Extend/Change Nonimmigrant Status)
Form I-797, Notice of Action, as evidence of the Form I-130 approval letter or receipt notice
Applicable filing fees

Medical Examinations

If you received a complete medical exam conducted by either a Panel Physician overseas or a Civil Surgeon within the United States prior to receiving your V visa, you are not required to have another medical exam if your Form I-485 is filed within one year of your medical exam. You will, however, be required to submit the vaccination portion of Form I-693, which will be completed by a Civil Surgeon. See the filing instructions for Form I-693 for further information.

Requirements for Travel Outside the United States While Your Form I-485 is Pending

You do not need to file for advance parole prior to traveling abroad while your Form I-485 is pending; however, you must obtain a V visa from a consular office abroad in order to be readmitted to the United States as a V nonimmigrant. Departure from the United States at any time after having accrued more than 180 days of unlawful presence will render you inadmissible to the United States to adjust status unless you obtain a waiver. Therefore, before traveling outside the United States while your Form I-485 is pending, please carefully consider any possible consequences.

6. Widow(er)

Green Card for a Widow(er) of a U.S. Citizen

Widows or widowers who were married to U.S. citizens at the time of the citizen’s death may apply for a green card.

Until October 28, 2009, you had to have been 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. Congress removed this requirement, effective October 28, 2009.

To immigrate as the widow(er) of a citizen, you must prove that you were legally married to the citizen, and that you entered the marriage in good faith, and not solely to obtain an immigration benefit.

Widow(er) With 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.

Widow(er) Without a 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:

Were married to a U.S. citizen at the time he or she passed away
Either have a pending or approved Form I-130 or you have filed a Form
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).
Are not remarried
Were not divorced or legally separated from your spouse at the time he or she died
Are able to prove that you were in a bona fide marital relationship until the time of your spouse’s death
Are admissible to the United States

Application Process

To obtain a green card, you need to file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with all required documents as listed in the form instructions. If your spouse filed Form I-130, Petition for Alien Relative, before his or her death, we will consider the petition as if you had filed an I-360.

If You Live in the United States

You may file Form I-485, Application to Register Permanent Residence or Adjust Status, either at the same time you file your Form I-360 or after you file the Form I-360 whether it is pending or approved. If you already filed Form I-485 based on the petition filed by your spouse, USCIS will continue to process this application and you do not need to file another one.

If You Live Outside of the United States

Your approved petition will be forwarded overseas to the U.S. embassy or consulate that has jurisdiction over where you live. For more information, see the “Consular Processing” page.

Supporting Evidence for the Form I-485

You should submit the following evidence/documentation with your application:

Two passport-style photos
Form G-325A, Biographic Information (if between the ages of 14 through 79)
Copy of your birth certificate
Copy of your passport page with nonimmigrant visa (if applicable)
Copy of passport page with admission (entry) or parole stamp (if applicable)
Form I-94, Arrival/Departure Record (if applicable)
Form I-693, Report of Medical Examination and Vaccination Record
Form I-130 receipt notice or approval letter (Form I-797), if applicable; or
Form I-360 with all required documents, if filing at the same time (concurrently) with Form I-485
If not filing concurrently, Form I-360 receipt notice or approval letter (Form I-797)

Medical Examination

You will need to undergo a medical exam to be eligible for adjustment as an immediate relative. To locate a civil surgeon near you, see the “Find a Medical Doctor” page.

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

Your 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. For more information, see our page on the Child Status Protection Act.

Work & Travel Authorization

Generally, when you have a pending Form I-485, it is possible for you to apply for authorization to work in the United States and to seek advance parole (advance permission to travel and be admitted to the United States upon your return). For further information, see the “Work Authorization” and “Travel Documents” pages.

What the Law Says

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.

7. K Nonimmigrant

Green Card for a K Nonimmigrant

The K-visa categories for fiancé(e)s of U.S. citizens and their accompanying minor children (K-1 and K-2 visas) were created to speed up the immigration process for such individuals so they could travel more quickly to the United States.

By allowing a fiancé(e) and his/her accompanying minor children to be admitted to the United States as nonimmigrants, fiancé(e)s can be spared a long separation from their intended spouse, while continuing their processing for an immigrant visa after the marriage takes place.

U.S. citizen fiancé(e)s file for their intended spouse on Form I-129F, Petition for Alien Fiancé(e).

Legal Immigration and Family Equity (LIFE) Act

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. Due to a backlog of immigrant visa petitions (Forms I-130, Petition for Alien Relative) at that time, a long separation could occur between the overseas fiancé(e) and their intended U.S. citizen spouse. To prevent a long separation, U.S. citizens were allowed to file an additional petition on Form I-129F while their Form I-130 was pending to allow their foreign spouses and his/her minor children to come to the United States as nonimmigrants in an expedited manner.

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:

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)
Have been admitted to the United States as a K Nonimmigrant
Met the requirement to marry the U.S. citizen fiancé(e) within 90 days of entry, if a K-1 visa holder
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
Have an immigrant visa immediately available
Are admissible to the United States

Application Process

If you entered the United States as a fiancé(e) of a U.S. citizen (K-1), child of a fiancée of a U.S. citizen (K-2), or the spouse or child of a U.S. citizen (K-3 or K-4) you will have to file for adjustment of status in order to get your green card and to remain legally in the United States.

To obtain a green card, you need to file Form I-485.

If You are Present in the United States as a K-1 Fiance(e)

You should apply for adjustment as soon as you marry your fiancé(e). By law and regulations, you are required to marry the U.S. citizen who petitioned for you within 90 days of your admission to the United States in K-1 status. If you fail to marry, you will become removable from the United States and cannot adjust through any other means.

If You are Present in the United States as K-2, the Minor Child of a K-1 Fiance(e)

You should seek adjustment of status at the same time as your parent (K-1) since your reason to adjust, in general, depends on your parent’s eligibility to adjust. There are some special rules as to how long you can seek adjustment. Please refer to the related sections below under “Other considerations” for additional information.

If You Seek Adjustment as a K-3, Spouse of a U.S. Citizen

You may seek adjustment as soon as you enter the United States. You can only seek adjustment of status based on your marriage to the U.S. citizen spouse who also petitioned for K-3 status for you.

Note: You may obtain an extension of your K-3 status in 2-year intervals, while your adjustment of status application is pending. You should, at the same time, apply for an extension of the K-4 status for your child. Refer to 8 CFR 214.2(k)(8) for additional information.

If You Seek Adjustment as a K-4, Child of the K-3 Spouse of a U.S. citizen

You should seek adjustment of status as soon as your parent seeks adjustment of status. You can only seek adjustment of status on the basis of the marriage of your K-3 parent to his/her U.S. citizen spouse or the stepparent-child relationship this marriage caused and upon which your I-130 is based. See 8 CFR 245.1(c)(6)(ii) for additional information.

Supporting Evidence for the Form I-485

You should submit all of the following evidence and documentation with your application:

Two passport-style photos
Form G-325A, Biographic Information
Copy of your government issued photo identification
Copy of your birth certificate
Copy of passport page with nonimmigrant visa
Copy of passport page with admission (entry) or parole stamp
Form I-94, Admission/Departure Record
Evidence of your marriage to the U.S. citizen within 90 days (for K-1s)
Form I-693, Report of Medical Examination and Vaccination Record, if applicable
Form I-864, Affidavit of Support
Copy of approved Form I-130 or Form I-797, Notice of Action, if Form I-130 is pending (if K-3 or K-4)
Copies of any other approved application or waiver you have had in relation with your application for K status (Approved Form I-129F, Form I-601, Application for Waiver of Excludability, etc.)
Applicable filing fees

Note: Those applying based on K-1 or K-2 status will not need a Form I-130 filed on their behalf. However, a K-2 stepchild may have a Form I-130, Immediate Relative Petition, filed on his/her behalf if eligible and necessary to prevent age-out concerns. Read “Other Considerations” below for further information.

Medical Examination

If you received a medical examination prior to admission as a K nonimmigrant, then you are not required to have another medical examination at time of adjustment as long as:

Your Form I-485 is filed within 1 year of your overseas medical examination
The medical examination did not reveal a Class A medical condition
If you did have a Class A medical condition, you received a waiver of inadmissibility and you have complied with the terms and conditions of the waiver

Even if a new medical examination is not required, you still must show proof that you have complied with the vaccination requirements. If the vaccination record (DS 3025) was not properly completed and included as part of the original, overseas medical examination report, you will have to have the vaccination report completed by a designated civil surgeon. In this case, you are required to submit Part 1, Information About You, Part 2, the vaccination chart, and Part 5, the Civil Surgeon’s Certification, of Form I-693 (in an envelop sealed by the civil surgeon). Please see the instructions for Form I-693 for further information.

Other Considerations

Special Considerations When Seeking Adjustment of Status as a K-2

The Section 101(b)(1) of the Immigration and Nationality Act defines a “child” as “an unmarried person under twenty-one years of age.” Generally, a K-2 can seek adjustment of status as the minor child of a K-1. Therefore, if the K-2 adjusts status based on the K-1’s adjustment, then the K-2 can only adjust status prior to his or her 21st birthday. Several recent developments may impact a K-2s ability to seek adjustment beyond the age of 21.

If you should attain the age of 21 years while your Form I-485 is pending, you may be covered under the Child Status Protection Act of 2002 (CSPA) (see information below).

K-2/K-4 Adjustment of Status as the Step-Child of the U.S. Citizen & CSPA

In 2002, Congress passed the Child Status Protection Act of 2002 to permit an applicant for certain immigration benefits to retain the classification as a “child” under Section 101(b)(1) of the INA even if he or she reaches the age of 21. For more information, please see “Child Status Protection Act” link to the left under “Green Card Processes & Procedures.”

Limited CSPA Coverage for K-2s

An individual in K-2 status does not generally have a visa petition (Form I-130, Petition for Alien Relative) filed by the U.S. citizen petitioner, which is required in order for CSPA provisions to be applicable. Therefore, a K-2 nonimmigrant cannot utilize the CSPA when seeking to adjust status. A K-2, absent any different circumstance, may only seek adjustment until he or she reaches his 21st birthday and must adjust prior to his/her 21st birthday.

Although not required, USCIS may accept a Form I-130 filed by the U.S. citizen petitioner based on a parent-child relationship between the petitioner and the K-2 nonimmigrant (for example, when the U.S. citizen petitioner has married the K-1, and the K-2 was not yet 18 years old at that time. In this case, the K-2 is considered the step-child of the U.S. citizen under the law). This will allow an individual who once was a K-2 to adjust on the basis of being an immediate relative of a U.S. citizen, and allow him or her to utilize the CSPA when seeking adjustment of status (that is, not age out while his/her Form I-485 is pending).

Exercising this option requires:

An existing parent-child relationship between the U.S. citizen petitioner and the K-2 nonimmigrant
Filing of Form I-130 prior to the K-2’s 21st birthday
Submitting all required documentation and paying the required fees associated with Forms I-130 and I-485

CSPA Coverage of K-4s

An individual in K-4 status may utilize the provisions of CSPA upon seeking adjustment of status because a K-4 nonimmigrant seeks to adjust as an immediate relative of a U.S. citizen on the basis of a Form I-130 filed by his or her U.S. citizen step parent. See 8 CFR 245.1(i) for further information.

This petition can only be filed if a parent-child relationship between the U.S. citizen and the K-4 nonimmigrant exists and the marriage between the U.S. citizen and the K-4’s parent occurred before the child’s 18th birthday. Since the K-4 child’s age “freezes” on the date the Form I-130 is filed, a K-4 benefits from the CSPA as long as the Form I-130 petition is filed before the K-4’s 21st birthday.

Source: USCIS

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Family-based Immigration (가족 이민 영주권)

1. Green Card for an Immediate Relative of a U.S. Citizen