Family Petition for Permanent Residence in the U.S.

A U.S. citizen may file this petition if you and your Fiancé:

1. Are legally free to marry and intend to marry within 90 days of your fiancé(e)’s admission to the United States; and
2. Have met each other in person within the two years immediately before you filed this petition, unless you establish that either:
   (1) The requirement to meet your fiancé(e) in person would violate strict and long-established customs of your fiancé(e)’s foreign culture or social practice, and that any and all aspects of the traditional arrangements have been or will be met in accordance with the custom or practice; or
   (2) The requirement to meet your fiancé(e) in person would result in extreme hardship to you.

Adopted child: Relationship must be established before the child turns 16. If State law allows a nun pro tunc adoption, USCIS should respect the state law and allow the child’s age to be “backdated.” In one case, a child who had been raised by his U.S. citizen uncle who served as his legal guardian. The uncle later filed a petition to adopt the child after the child turned 16. The final adoption decree was issued when the child was 17. Based on the child’s age at the date of the final adoption decree, the immigration judge found that the child did not satisfy the definition of an adopted child.

The child’s uncle then returned to state court and obtained a nunc pro tunc order amending the adoption decree to make it effective as of the day before the child’s 16th birthday. The circuit court held that the retroactive order of adoption should be recognized and that a child is adopted for purposes of the immigration laws, "on the date that a state court rules the adoption effective, without regard to the date on which the act of adoption occurred."

There are 2 ways to have this type of case approved:

1. You may apply for a “bona fide marriage exemption.” You must request in writing a bona fide marriage exemption and prove by clear and convincing evidence that the marriage is legally valid where it took place and that you and your spouse married in good faith and not for the purpose of obtaining lawful permanent resident status for your spouse and that no fee or any other consideration (other than appropriate attorney fees) was given to you for filing this petition. The request must be submitted with the petition.
2. Your spouse has lived outside the United States, after the marriage, for a period of at least two years. Have your spouse keep records proving that he or she was living outside of the US. Such evidence may include, rental agreements and rent payments, pay stubs, job verification letter, proof of medical appointments, etc.

If you have been married less than two years on the date your spouse obtained permanent resident status, USCIS will grant your spouse conditional permanent resident status for two years. USCIS requires both you and your spouse to a petition to remove the conditions on residence and become a lawful permanent resident. The petition may be filed up to 90 days before the conditional residence expires.

The Adam Walsh Child Protection and Safety Act of 2006 prohibits a U.S. citizen or lawful permanent resident from petitioning a spouse or fiancé if the petitioner has been convicted of a “specified offense against a minor,” unless the petitioner can demonstrate to the Department of Homeland Security that he or she poses “no risk” to the beneficiary spouse or fiancé.

A “specified offense against a minor” is broadly defined as an offense against a person under the age of 18 that involves kidnapping, criminal sexual conduct (including consensual sexual contact with a person under age 18, if convicted of an offense related to that contact), and any other conduct “that by its nature is a sex offense against a minor.” The date of the conviction does not matter.

If the petitioner was convicted of a specified offense against a minor, the petition will only be approved if the petitioner poses “no risk” to the beneficiary spouse. The proof USCIS must be “beyond any reasonable doubt” that the petitioner poses no risk. Proof of no risk includes successful completion of counseling or rehabilitation programs; certified evaluations by psychiatrists, clinical psychologists, or clinical social workers attesting to the degree of rehabilitation or behavior modification; and other evidence of good character and exemplary service in the community.