Visa

Department of State v. Muñoz

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no right to marriage

In State Department v. Muñoz, the U.S. Supreme Court ruled against a U.S. citizen who said her constitutional rights were violated by the federal government when it denied a visa to her Salvadoran husband. Munoz and her husband, who she married in 2010 and has a child with, have been separated since 2015 while they were going through the visa process. After several interviews, a consular officer denied Asencio-Cordero’s application, citing a provision that renders inadmissible a noncitizen whom the officer believes seeks to engage in unlawful activity. Asencio-Cordero and Muñoz sued the Department of State, claiming that it had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the “unlawful activity” bar, because the consulate did not provide any further explanation for the decision. Visa denials are not reviewable in court unless the government violates an applicant’s constitutional rights in the process.The Supreme Court on Friday rejected Munoz’s claim that the delay in explaining the denial violated her due process rights by interfering with her fundamental right to marry. The claim “involves more than marriage and more than spousal cohabitation — it includes the right to have her noncitizen husband enter (and remain in) the United States,” Justice Amy Coney Barrett wrote for the court. Justice Sotomayor (joined by Justices Elena Kagan and Ketanji Brown Jackson) wrote, “There is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision.”

Visa Bulletin

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The number of visas that are available for immigrants coming to the United States is limited under the law. The limitations are determined annually and then a monthly visa bulliten is published based on the number of visas used. The visa bulletin is used to determine when a visa is available. As an example this is the visa bulliten for September 2023. The Department of State has determined the Family and Employment preference numerical limits for FY-2023 in accordance with the terms of Section 201 of the INA. Under INA Section 202(a), the per-country limit is fixed at 7% of the family and employment annual limits.  For FY-2023 the per-country limit is 29,616.  The dependent area annual limit is 2%, or 8,462. These numerical limitations for FY-2023 are as follows: Worldwide Family-Sponsored preference limit:          226,000Worldwide Employment-Based preference limit:        197,091 STATUTORY NUMBERS FOR PREFERENCE IMMIGRANT VISAS This bulletin summarizes the availability of immigrant numbers during September for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center. Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.  IMMEDIATE RELATIVES Immediate relative petitions are not subject to the family-sponsor preferences. Immediate relative visas are available once approved. Immediate relatives are considered to be: FAMILY-SPONSORED PREFERENCES All other family-sponsored visas are in preference categories. The preference categories will determine when the visa will become available. The family-sponsored preference categories are as follows: First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences. September 2023 FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES Family-Sponsored  All Chargeability Areas ExceptThose Listed CHINA-mainland born INDIA MEXICO PHILIPPINES  F1 01JAN15 01JAN15 01JAN15 22APR01 01MAR12 F2A 01JAN18 01JAN18 01JAN18 01SEP16 01JAN18 F2B 22SEP15 22SEP15 22SEP15 01AUG01 22OCT11 F3 08JAN09 08JAN09 08JAN09 15JAN98 08JUN02 F4 22APR07 22APR07 15SEP05 01AUG00 22AUG02 Visa Bulletin For September 2023https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html EMPLOYMENT-BASED PREFERENCES First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”. Fourth:  Certain Special Immigrants:  7.1% of the worldwide level. ***Special Immigrant Juvenile I-360 Petitions also use this preference category, read more. Fifth:  Employment Creation:  7.1% of the worldwide level, of which 32% are reserved as follows: 20% reserved for qualified immigrants who invest in a rural area; 10% reserved for qualified immigrants who invest in a high unemployment area; and 2% reserved for qualified immigrants who invest in infrastructure projects. The remaining 68% are unreserved and are allotted for all other qualified immigrants. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES Employment-based All Chargeability Areas ExceptThose Listed CHINA-mainland born INDIA MEXICO PHILIPPINES 1st 01AUG23 01FEB22 01JAN12 01AUG23 01AUG23 2nd 01JUL22 08JUL19 01JAN11 01JUL22 01JUL22 3rd 01MAY20 01SEP19 01JAN09 01MAY20 01MAY20 Other Workers 01MAY20 01SEP15 01JAN09 01MAY20 01MAY20 4th 01SEP18 01SEP18 01SEP18 01SEP18 01SEP18 Certain Religious Workers 01SEP18 01SEP18 01SEP18 01SEP18 01SEP18 5th Unreserved(including C5, T5, I5, R5) C 08SEP15 01APR17 C C 5th Set Aside:Rural (20%) C C C C C 5th Set Aside:High Unemployment (10%) C C C C C 5th Set Aside:Infrastructure (2%) C C C C C https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html DIVERSITY VISAS DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF SEPTEMBER Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually allocated diversity visas will be made available for use under the NACARA program.  This will result in reduction of the DV-2023 annual limit to approximately 54,833.  DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For September, immigrant numbers in the DV category are available to qualified DV-2023 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: Region All DV Chargeability Areas ExceptThose Listed Separately   AFRICA Current Except:  Algeria     45,000              Egypt        43,200              Morocco   63,400 ASIA 21,000 Except:  Iran     16,000              Nepal  21,000 EUROPE 32,000 Except:  Russia         32,000               Uzbekistan  17,000 NORTH AMERICA (BAHAMAS)  Current   OCEANIA 2,500   SOUTH AMERICA,and the CARIBBEAN 3,150   https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html Entitlement to immigrant status in the … Read more

Petitioning for Relatives

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PETITIONING FOR RELATIVES  Type of Relative for Whom You May Petition Immigration Benefit Related Forms Spouse Children (unmarried and under 21) Sons and daughters (married and/or 21 or over) Parents, if you are 21 or over Siblings, if you are 21 or over Green Card (permanent residence) Form I-130, Petition for Alien Relative Form I-485, Application to Register Permanent Residence or Adjust Status Form I-864, Affidavit of Support A fiancé(e) residing outside the United States and children of fiancé(e) under 21 Fiancé(e) visa Form I-129F, Petition for Alien Fiancé(e) Spouse Children of spouse (unmarried and under 21) K-3/K-4 visa Form I-129F, Petition for Alien Fiancé(e) Form I-130, Petition for Alien Relative WHAT RELATIVES CAN I PETITION FOR? Immediate Relatives Other Family Members Spouses of U.S. citizens Children (unmarried and under 21) of U.S. citizens Parents of U.S. citizens (The petitioning citizen must be 21 or older.) Visas are always available for immediate relatives of U.S. citizens. This means your family member does not need to wait in line for a visa. Immediate relatives who are in the United States can file Form I-485, Application to Register Permanent Residence or Adjust Status at the same time as Form I-130. For more information on how your relative can apply to adjust status (get a Green Card) while they are in the United States, see the How to bring a family member to the U.S. Preference categories apply to family members who are not immediate relatives. The visas allotted for these categories are subject to annual numerical limits. A visa becomes available to a preference category based on the priority date (the date the Form I-130 was filed). Preference categories are grouped as follows: First preference: Unmarried, adult sons and daughters of U.S. citizens (adult means 21 or older.) Second Preference (2A): Spouses of Green Card holders, unmarried children (under 21) of permanent residents Second Preference (2B): Unmarried adult sons and daughters of permanent residents Third Preference: Married sons and daughters (any age) of U.S. citizens Fourth Preference: Brothers and sisters of adult U.S. citizens. For current wait times, see the USCIS Processing Time Information page on this website and the Visa Bulletin page on the U.S. Department of State website. For more information on priority dates, see the Visa Availability and Priority Dates page. How to bring a family member to the U.S.

Bona Fide Marriage Exemption

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Non-citizens who marry U.S. citizens or lawful permanent residents while in removal proceedings must show by clear and convincing evidence that the marriage was entered into in good faith. See INA § 245(e)(3). What is commonly called, “the bona fide marriage exemption” must be requested in writing and submitted with Form I-130. See 8 C.F.R. § 204.2(a)(1)(iii)(A). The request must state the reason for seeking the exemption and must be supported by documentary evidence establishing eligibility for the exemption. You must be prepared to address the bona fide marriage exemption early in your case. It is important that you, the couple, document your relationship thoroughly. Evidence of the relationship will be critical to the removal proceedings and to obtaining approval of the visa petition. USCIS checks social media, publicly accessible websites, and other databases during their review of the application. Please make sure that you are not and have not posted information that contradicts the documents and testimony we will submit to USCIS and the Immigration Judge. You should keep all documents that show both of your names, such as mail, bills, and other records that can serve as proof of your relationship. Documents such as the following should be gathered to assist in proving good faith marriage: TEMPLATE FOR BONA FIDE MARRIAGE EXEMPTION LETTER Marriage was entered into in good faith. INA § 245(e)(3). We are seeking a “bona fide marriage” exemption pursuant to 8 C.F.R. § 204.2(a)(1)(iii)(A).

How Petition to Bring a Family Member to the U.S.

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As a citizen of the United States, you may help a relative become a lawful permanent resident of the United States by obtaining what is often referred to as a “Green Card.” To do so, you need to sponsor your relative and be able to prove that you have enough income or assets to support your relative(s) when they come to the United States. You begin the process by filing Form I-130, Petition for Alien Relative. This form establishes the family relationship that exists between you and your relative. Filing instructions and forms are available on our Web site at www.uscis.gov. Sometimes the I-130 can be filed together with an application for permanent residence (Form I-485, Application to Register Permanent Residence or Adjust Status). This is discussed below. Which relatives may I petition for?A U.S. citizen can file a petition for the following relatives: A U.S. citizen who is at least 21 years or older may also petition for the following relatives: What does the petition do for my relative?Filing a Form I-130 and proving a qualifying relationship gives your relative a place in line with others waiting to immigrate from the same country or region based on the same type of relationship. When your relative reaches the front of the line, he or she may be eligible to immigrate after passing the required background checks and meeting requirements for admission. For example: You file a petition for your unmarried son over 21 years of age. If we approve it, your petition gives him a place in line with people from the same country category who are also unmarried sons or daughters over the age of 21 of U.S. citizens. What about my relative’s family?In most cases, when your relative reaches the front of the line, your relative’s spouse and unmarried children under 21 years of age can join him or her by also applying for an immigrant visa. (If the family member is already in the United States, he or she may be able to file a Form I-485 application to adjust status based on the relative’s approved visa petition.) For example: You file a petition for your married daughter. You cannot directly petition for her husband and children. However, when your daughter’s place in line allows her to apply for a Green Card, her husband and children can apply for immigrant visas at the same time with your daughter. As a U.S. citizen, you must file a separate petition for each one of your direct relatives, including your own children. For example: To sponsor your mother and father, file a separate petition for each. If they have other children—your brothers and sisters—file a separate petition for each of them. Visas are immediately available for mothers and fathers of U.S. citizens, but visas are not immediately available for brothers and sisters of U.S. citizens; therefore, they will have to wait for visa availability. For example: You marry someone with a child. The child will usually qualify as your stepchild if he or she was unmarried and under 18 years of age at the time of your marriage. In this example, you are required to file two petitions: one petition for your wife and another for the child. After I file, how long will it take before my relative can immigrate?The law gives special consideration to immediate relatives of U.S. citizens, which includes a U.S. citizen’s spouse, unmarried children under 21 years of age, and parents. For other relatives, the combination of high demand and the limits set by law on how many people can immigrate each year means your relative may have to wait several years in line while petitions that were filed before theirs are processed. When your relative reaches the front of the line, the U.S. Department of State contacts your relative and invites him or her to apply for an immigrant visa. Current wait times for visa categories are available under “Visa Bulletins” on the State Department’s Web site at www.travel.state.gov/visa. Can my relative wait in the United States until becoming a permanent resident? No. If your relative is outside the United States, filing an I-130 does not allow your relative to live or work in the United States. An I-130 petition only establishes your relationship with your relative. Your relative should wait outside the United States to immigrate legally. If your husband or wife, unmarried child under 21 years, or parent is already in the United States after having entered legally, they can apply to adjust their status to permanent resident at the same time you file their I-130 petition. Does filing a relative petition commit me to anything?Yes. Under the law, each person who immigrates based on a relative’s petition must have a financial sponsor. If you choose to sponsor your relative’s immigration by filing a relative petition (I-130), when the time comes for your relative to immigrate, you must agree to be his or her financial sponsor by filing Form I-864, Affidavit of Support. If you do not meet the financial qualifications, other individuals will then need to make this commitment. For more information, please see Guide to Form I-864A. How Do I Financially Sponsor Someone Who Wants to Immigrate? It is part of the process of petitioning for someone. Read about the Form I-864A to learn more about affidavits of support and financial support. How do I file?There are two basic ways to legally assist your relatives to immigrate into the United States: 2. If your relatives are already in the United States and entered legally, then they may be able to file an I-485 application to adjust their status to lawful permanent resident at the same time as you file the I-130 relative petition. Petitions filed at the same time with permanent residence applications (I-485) must be filed at a location that is different from where you would file an I-130 petition by itself. Please read the instructions for the two addresses where concurrent filings can be mailed. What happens … Read more