There is much excitement over Category F2A (the preference category for spouses and children under 21 of lawful permanent residents) becoming current next month-and understandably so. For quite some time now, this preference category has been approximately two years behind. However, it is important to recognize that current does not mean immediate, especially in the consular filing context, which on average can take up to one year. A concomitant question that naturally arises is whether the spouse of a pending I-130 petition for alien relative can apply for a visitor's visa. The simple answer is yes. An individual is not necessarily precluded from applying for a non-immigrant visa just because a petition for alien relative petition is pending. Not surprisingly, though, the answer is much more complicated than that. Perhaps the better question is, "Will my spouse get the visitor's visa to come see me while the case is pending?" And, unfortunately, there is no simple answer to that, although in the vast majority of cases, the answer is probably not. The reason why is that consular officials are likely to question whether your spouse truly has non-immigrant intent to come visit you, given that you have already filed a petition for his/her immigrant visa. The consular officer may think that your spouse is trying to circumvent the long processing times associated with the process and perhaps is planning on filing for adjustment of status once he/she manages to get into the US via the visitor's visa. On the other hand, this is not to say that it is impossible for your spouse to come visit you. If your spouse exhibits strong evidence that he/she will return, along with substantial ties to his/her native country, a visitor's visa may still be granted. Generally speaking, though, even applying for a visa under these circumstances is a risky proposition. Not only may the application be denied, but worse, if there is some sort of misunderstanding, there is always the specter of an allegation of fraud or misrepresentation, which may destroy a case permanently. The best thing to do before your spouse goes ahead and applies for that visa is to consult with counsel to evaluate the evidence that will be provided to demonstrate non-immigrant intent and assess the feasibility of whether to apply or not.
In addition to USCIS's implementation of the Supreme Court's Ruling on the Defense of Marriage Act ("DOMA"), an appellate judicial board has further confirmed that Section 3 of DOMA is no longer a barrier to receiving federal immigration benefits. In Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), the Board of Immigration Appeals ("BIA") ruled that in light of the Supreme Court's decision in United States v. Windsor, same sex marriages conducted in states where legally recognized, are recognized as marriages under the Immigration and Nationality Act. Of course, just as in any other type of marriage case, the couple must prove the bona-fide nature of the marital relationship, so in this particular case, the Board remanded the case back to USCIS to allow the Petitioner the opportunity to prove that his marriage relationship with Mr. Zeleniak was legitimate and not entered into for immigration purposes. This case is important for not only confirming and establishing that gay marriages are legally recognized under the Immigration and Nationality Act but they may also serve as bases for other types of petitions and forms of relief, including fiancé petitions, waivers of removability and inadmissibility, and cancellation of removal.
According to the latest visa bulletin (August 2013), preference category F2A is now current! F2A is the visa immigrant classification category assigned to spouses and children under 21 of lawful permanent residents. For some time now, visa availability for this category has been close to two years behind. As of August, however, the category appears to be current. What does this mean practically? It means that should a lawful permanent resident file an immigrant visa for his/her spouse, the waiting and processing time-in theory--should be comparable to that of a United States citizen filing for his/her spouse. Of course, this is all subject to change, and visa availability can easily retrogress by the next month if this category becomes heavily oversubscribed. In contrast, if one is a United States Citizen, one need not worry about visa availability and "retrogression" because the visa is automatically available since the spouse and/or child under 21 is considered an "Immediate Relative." The only wait times that a US Citizen will undergo is the normal processing time, which should be distinguished from visa availability. Nevertheless, the sudden movement in this preference category is encouraging and will hopefully serve to reunite lawful permanent residents with their family members much sooner than they might have anticipated, given the estimated visa and processing delays. Let's hope that it stays current.
One of the many wonderful provisions contained within S744, the bill recently passed by the US Senate, is a meaure that provides relief to children who "age out." As things currently are, it is not uncommon for derivative beneficiary children to turn 21 or over by the time a visa number becomes available for their mothers or fathers, who are the principal beneficiaries. Unless these children can avail themselves of the Child Status Protection Act ("CSPA"), they are often out of luck and unable to immigrate with their parents. The parents, in turn, must come to the US without their adult children and file separate I-130s for them--and wait several more years before these children can come to the US--despite language in the CSPA that allows for retention of the original priority date (that is, the date assigned to the cases originally filed for them as the principal beneficiaries). The California Supreme Court recently interpreted the CSPA to allow for retention of priority dates in De Osorio v. Mayorkas, a pivotal decision with sweeping ramifications. The government appealed and The Supreme Court of the United States has decided to hear the issue.
Last week saw two major new developments in immigration law. One was the passage of Bill S744 by the Senate, which offers an eventual pathway to citizenship for the millions of people out of status. The second equally, if not arguably more important, newsworthy item was the Supreme Court's decision in United States v. Windsor, in which the highest court in the land struck down Section 3 of the Defense of Marriage Act (DOMA). The import of this decision is groundbreaking, as it extends federal benefits to same sex binational couples. We will post more information on the significance of these two topics in the near future.