SERVICES
SERVICES
FAMILY BASED IMMIGRATION
FAMILY BASED IMMIGRATION
What is the process for a filing based upon marriage to a U.S. citizen?
This depends on where the foreign national is when the decision is made to get married, and on whether the marriage is to occur here in the U.S. or overseas.
What is the procedure when the marriage will take place in the U.S., and the foreign national has been present in the U.S. for a while already?
For situations where the marriage occurs here in the U.S., the process is relatively straightforward – assuming that the foreign national entered legally and has been in the U.S. for some time. The application, consisting of various completed forms and documents, is prepared and then filed to a central location in Chicago operated by U.S. Citizenship and Immigration Services, where data about the case is input into the USCIS computer system. The file is then sent on to a large Service Center in Missouri (the “National Benefits Center”) for most of the initial processing. Here, Receipt Notices are issued within a week or two after filing along with instructions for the foreign national spouse to appear and have fingerprints and a digital photo taken (“Biometrics”). Applications for Employment Authorization and Travel Authorization, if submitted, are adjudicated here as well. The file is then transferred to the local District Office with jurisdiction over the location where the couple lives for interview and adjudication. The length of time it takes before the interview depends on the size of the current backlog at this local District Office.
What is the process where the foreign national spouse is abroad when the decision to get married is made, but the couple plans to marry in the U.S.?
If the non-US citizen individual is abroad when the decision to become engaged is made but the couple will get married in the U.S., there is a non-immigrant visa option available: the K-1 fiance visa. A K-1 fiance visa can take six months to a year to obtain, allowing the foreign national to come to the U.S. with the intention of marrying the U.S. citizen fiance. This marriage must take place within three months of entry into the U.S. following which the foreign national spouse may apply for Adjustment of Status in the U.S. to obtain permanent residence.
What is the process where the foreign national spouse is abroad when the decision to get married is made, and the couple wants to get married abroad?
The process is slightly more complex where the marriage occurs overseas.
The U.S. citizen spouse will need to file an Immigrant Petition for Alien Relative (the first part of the two-part process described above) with USCIS.
Once this is approved, the U.S. State Department will be notified and as separate process will begin for the spouse residing abroad to process through a U.S. embassy or consulate in their home country.
Once interviewed at the embassy or consulate, a foreign national spouse approved by the post for an immigrant visa is given a set of documents which can be used to enter the U.S. as a permanent resident.
This process can be very time consuming, often taking far longer than the adjustment of status process here in the US.
During this time, it will be extremely difficult for the foreign national spouse to enter the U.S. to visit – it isn’t easy to convince interviewing officers of their intent to visit briefly when their computer shows a permanent residence application pending.
Is there any way to bring the foreign national spouse to the U.S. any earlier, while this process is going on?
There is also such a thing as a K-3 visa, which allows a foreign national spouse waiting outside the U.S. for approval of the I-130 petition to enter the U.S. while waiting. However, the need to demonstrate that the I-130 has already been filed, along with the relatively small difference in remaining processing time between the I-130 and the K-3 petition at that point and other inconveniences once the foreign national spouse reaches the U.S., often lead to a decision that any benefit of this visa simply isn’t worth the added expense.
Is this the easiest way to get permanent residence, as I’ve heard?
Only if the relationship, and subsequent marriage is genuine. If the relationship is genuine, such cases can be relatively straightforward, inexpensive, and quick compared to other methods of obtaining permanent residence. However, we strongly advise against entering into a marriage solely to obtain immigration benefits – for both legal and ethical reasons. The consequences of getting caught are severe – USCIS will likely pursue removal proceedings against the foreign national, and that person may find it virtually impossible to ever attain a legal status in the U.S. Moreover, U.S. Citizenship and Immigration Services is extremely skilled at detecting fake marriages, so the chances of success are actually very low no matter what you may have heard. Further, being married to someone you don’t actually wish to be married to is a recipe for disaster.
What is the process for a filing based upon marriage to a U.S. citizen?
This depends on where the foreign national is when the decision is made to get married, and on whether the marriage is to occur here in the U.S. or overseas.
What is the procedure when the marriage will take place in the U.S., and the foreign national has been present in the U.S. for a while already?
For situations where the marriage occurs here in the U.S., the process is relatively straightforward – assuming that the foreign national entered legally and has been in the U.S. for some time. The application, consisting of various completed forms and documents, is prepared and then filed to a central location in Chicago operated by U.S. Citizenship and Immigration Services, where data about the case is input into the USCIS computer system. The file is then sent on to a large Service Center in Missouri (the “National Benefits Center”) for most of the initial processing. Here, Receipt Notices are issued within a week or two after filing along with instructions for the foreign national spouse to appear and have fingerprints and a digital photo taken (“Biometrics”). Applications for Employment Authorization and Travel Authorization, if submitted, are adjudicated here as well. The file is then transferred to the local District Office with jurisdiction over the location where the couple lives for interview and adjudication. The length of time it takes before the interview depends on the size of the current backlog at this local District Office.
What is the process where the foreign national spouse is abroad when the decision to get married is made, but the couple plans to marry in the U.S.?
If the non-US citizen individual is abroad when the decision to become engaged is made but the couple will get married in the U.S., there is a non-immigrant visa option available: the K-1 fiance visa. A K-1 fiance visa can take six months to a year to obtain, allowing the foreign national to come to the U.S. with the intention of marrying the U.S. citizen fiance. This marriage must take place within three months of entry into the U.S. following which the foreign national spouse may apply for Adjustment of Status in the U.S. to obtain permanent residence.
What is the process where the foreign national spouse is abroad when the decision to get married is made, and the couple wants to get married abroad?
The process is slightly more complex where the marriage occurs overseas.
The U.S. citizen spouse will need to file an Immigrant Petition for Alien Relative (the first part of the two-part process described above) with USCIS.
Once this is approved, the U.S. State Department will be notified and as separate process will begin for the spouse residing abroad to process through a U.S. embassy or consulate in their home country.
Once interviewed at the embassy or consulate, a foreign national spouse approved by the post for an immigrant visa is given a set of documents which can be used to enter the U.S. as a permanent resident.
This process can be very time consuming, often taking far longer than the adjustment of status process here in the US.
During this time, it will be extremely difficult for the foreign national spouse to enter the U.S. to visit – it isn’t easy to convince interviewing officers of their intent to visit briefly when their computer shows a permanent residence application pending.
Is there any way to bring the foreign national spouse to the U.S. any earlier, while this process is going on?
There is also such a thing as a K-3 visa, which allows a foreign national spouse waiting outside the U.S. for approval of the I-130 petition to enter the U.S. while waiting. However, the need to demonstrate that the I-130 has already been filed, along with the relatively small difference in remaining processing time between the I-130 and the K-3 petition at that point and other inconveniences once the foreign national spouse reaches the U.S., often lead to a decision that any benefit of this visa simply isn’t worth the added expense.
Is this the easiest way to get permanent residence, as I’ve heard?
Only if the relationship, and subsequent marriage is genuine. If the relationship is genuine, such cases can be relatively straightforward, inexpensive, and quick compared to other methods of obtaining permanent residence. However, we strongly advise against entering into a marriage solely to obtain immigration benefits – for both legal and ethical reasons. The consequences of getting caught are severe – USCIS will likely pursue removal proceedings against the foreign national, and that person may find it virtually impossible to ever attain a legal status in the U.S. Moreover, U.S. Citizenship and Immigration Services is extremely skilled at detecting fake marriages, so the chances of success are actually very low no matter what you may have heard. Further, being married to someone you don’t actually wish to be married to is a recipe for disaster.
What other family relationships besides spouses allow for sponsoring someone for permanent residence?
Several relationships other than marriage permit sponsorship for permanent residence:
An adult (over 21) US citizen child can sponsor a parent.
US citizen parents can sponsor a child of any age, whether married or not, though whether the child is over or under 21 and whether the child is married or not can make a huge difference in how long the process takes.
Adult (over 21) US citizen siblings can sponsor a brother or sister, though this process takes such an incredibly long time for immigrant visa availability as to be impractical in most situations as anything but a fallback.
A permanent resident (non-citizen) parent, in addition to being able to sponsor a spouse, can sponsor a minor (under 21) child or an unmarried child over 21, but not a married child over the age of 21.
What relationships do not allow a pathway to permanent residence sponsorship?
Grandparents, Aunts and Uncles and Cousins (as well as any more distant relationship) can’t sponsor for permanent residence whether they be citizens or permanent residents themselves.
Is the process for other family members more or less the same as for sponsorship by a US citizen spouse?
It is for an adult US citizen child sponsoring a parent and for the other categories where the individual being sponsored entered legally and has maintained valid status (which is unusual) or where the individual being sponsored remains abroad. For someone present in the US without status, these categories may simply not be practical. Adjustment of status in the US would require not just lawful entry (“entry with inspection”) as would a US citizen marriage-based case, but unbroken/unelapsed immigration status right up to the time of filing the final stage. Without this, the person being sponsored would need to Consular Process – go through a US consular post abroad. Here, the act of leaving will often trigger the three and ten-year reentry bars for which a waiver would be needed – and depending on the category, no qualifying relative may be available.
What other family relationships besides spouses allow for sponsoring someone for permanent residence?
Several relationships other than marriage permit sponsorship for permanent residence:
An adult (over 21) US citizen child can sponsor a parent.
US citizen parents can sponsor a child of any age, whether married or not, though whether the child is over or under 21 and whether the child is married or not can make a huge difference in how long the process takes.
Adult (over 21) US citizen siblings can sponsor a brother or sister, though this process takes such an incredibly long time for immigrant visa availability as to be impractical in most situations as anything but a fallback.
A permanent resident (non-citizen) parent, in addition to being able to sponsor a spouse, can sponsor a minor (under 21) child or an unmarried child over 21, but not a married child over the age of 21.
What relationships do not allow a pathway to permanent residence sponsorship?
Grandparents, Aunts and Uncles and Cousins (as well as any more distant relationship) can’t sponsor for permanent residence whether they be citizens or permanent residents themselves.
Is the process for other family members more or less the same as for sponsorship by a US citizen spouse?
It is for an adult US citizen child sponsoring a parent and for the other categories where the individual being sponsored entered legally and has maintained valid status (which is unusual) or where the individual being sponsored remains abroad. For someone present in the US without status, these categories may simply not be practical. Adjustment of status in the US would require not just lawful entry (“entry with inspection”) as would a US citizen marriage-based case, but unbroken/unelapsed immigration status right up to the time of filing the final stage. Without this, the person being sponsored would need to Consular Process – go through a US consular post abroad. Here, the act of leaving will often trigger the three and ten-year reentry bars for which a waiver would be needed – and depending on the category, no qualifying relative may be available.
TAX AND E STATE PLANNING
What is an estate plan?
An estate plan is a collection of legal documents that lays out your intentions and expectations for two general situations:
What happens to your assets after you pass away
What happens when you can no longer take care of yourself or your estate
Your estate is the collection of everything you own. That includes cash, investments, real estate, business interests, and any other personal property. When you pass away, all of those assets need to go somewhere. An estate plan lays out who gets what.
Just as importantly, an estate plan explains what you want loved ones and caretakers to do if you become incapacitated and can no longer take care of yourself. That covers health care, long-term care, who will manage your finances, and who will look after your children if necessary.
Unsure why it’s necessary to plan for becoming incapacitated? Consider that according to the U.S. Centers for Disease Control and Prevention (CDC), two in five Americans age 65 and older live with a disability, which can affect their day-to-day lives. More than half of Americans aged 65 and older also suffer from Alzheimer’s or a related form of dementia. Even if this never affects you, it’s better to be prepared.
Who needs an estate plan?
Everyone should have an estate plan. If you own anything of value, you will need a plan for how to pass it on. The thing often overlooked is that a plan can make life a lot easier for your loved ones, who won’t want to be thinking about financial and legal matters as they grieve and handle your funeral arrangements.
4 common estate planning myths
To help drive home the point that everyone should have an estate plan, let’s dispel some common myths that exist around estate planning.
Myth 1: I’m young so I don’t need to worry about it.
Even someone who’s 30 will probably have multiple bank accounts, a retirement account, debts, and personal property that needs to go somewhere should they die. It’s frightening to think about your own death, but life is unpredictable and it’s a lot easier for your loved ones if you create a plan before you die.
In some cases, you can also save money by creating your plan now. For one, a life insurance policy will be significantly cheaper when you’re young and healthy than when you’re in your 50s or 60s. You can clearly see that in this breakdown of life insurance costs.
Myth 2: I don’t need a plan since my spouse just gets everything.
Even if you’re married, you and your spouse should each have a plan. An estate plan will prevent people from contesting ownership of your things and then potentially dragging out the disbursement of assets for months or more. There are also unique situations: what if your spouse dies before you or soon after you? Things could get messy if neither of you has a written plan.
At the very least, a clear plan will reduce the number of decisions your spouse and loved ones have to make while they’re grieving.
Myth 3: My family will know what to do.
While we like to think that our family and friends will follow our wishes after we pass away, it’s hard to guarantee that without a legal document instructing them on what to do. Unfortunately, people may act unexpectedly when a larger inheritance is a possibility. There are also seemingly small things you may not even consider but that could lead to disagreements, like who will get that box of old pictures in your closet.
Myth 4: Once I create a plan, I’m done.
It’s vital that you keep your plan and all documents current. If you divorce, do you still want everything to go to your ex-spouse? What happens if one of your beneficiaries dies before you do?
Regularly check your list of beneficiaries and make sure that all your documents still reflect your current wishes.
What actually happens to an estate after you die?
It’s easier to understand the estate-planning process if you know what happens to your estate when you pass away.
Everything you own at the time of your death becomes your estate. Then, the estate goes through the probate process, where a probate court decides what happens to your assets.
If you had a will, the court uses the will as their guide. If you didn’t have a will or if it was invalid for some reason, you are considered to have died intestate and the court uses local intestacy laws to decide who inherits your assets.
What is probate?
Probate is the process of verifying that your will is legal and that your final wishes are carried out. A will does not help your estate avoid probate. It simply makes the process smoother because the court can use it as a guide to what you wanted.
For most small estates, probate is a pretty simple process that can be completed relatively quickly. However, things may slow down if someone contests your will, which means they challenge what’s in it. Perhaps they feel they were wrongfully excluded or that they deserve something other than what the will says they'll receive. Contesting a will can drag out the probate process for months and potentially cost a lot in lawyer or court fees.
If you don’t have a will, your estate still goes through a probate court. The difference is that a judge will appoint someone to handle disbursing your assets. However the cost of a will can be affordable.
Who handles your estate?
Ideally, you have created a will that names someone as your executor. The executor of your estate, also called a personal representative, manages your estate through the probate process. They handle tax bills, debts you hadn’t paid off, and other matters affecting your estate. The executor also oversees the disbursement of your assets to beneficiaries.
Most people nominate their spouse or child of legal age as an executor, but you can choose anyone. However, the person you nominate is allowed to decline, so make sure to choose a contingent executor or two.
If you don’t name an executor before you die, the probate judge will choose an administrator.
Taxes on your estate
Your executor handles all tax bills for your estate. The money comes out of the estate, normally from your bank accounts. If necessary, the executor may need to (and has the right to) liquidate assets to pay off certain debts.
Your executor will file an income tax return for you and for your estate if it earns income, such as a rental property might. The executor will also handle any property taxes.
Very wealthy estates also need to think about estate tax.
Estate tax
Estate tax applies to your estate before anything is distributed to your heirs, but it only affects wealthy estates.
As of 2021, the first $11.7 million of your estate is exempt at the federal level, which will go up to $12.06 million in 2022. You only pay tax if your taxable estate is worth more than the current exemption, and so very few people actually pay federal estate tax. (Any assets passed to a surviving spouse are also exempt.) If your estate is worth that much, your executor is responsible for determining your taxable estate, filing the proper forms, and paying the tax bill.
What is an estate plan?
An estate plan is a collection of legal documents that lays out your intentions and expectations for two general situations:
What happens to your assets after you pass away
What happens when you can no longer take care of yourself or your estate
Your estate is the collection of everything you own. That includes cash, investments, real estate, business interests, and any other personal property. When you pass away, all of those assets need to go somewhere. An estate plan lays out who gets what.
Just as importantly, an estate plan explains what you want loved ones and caretakers to do if you become incapacitated and can no longer take care of yourself. That covers health care, long-term care, who will manage your finances, and who will look after your children if necessary.
Unsure why it’s necessary to plan for becoming incapacitated? Consider that according to the U.S. Centers for Disease Control and Prevention (CDC), two in five Americans age 65 and older live with a disability, which can affect their day-to-day lives. More than half of Americans aged 65 and older also suffer from Alzheimer’s or a related form of dementia. Even if this never affects you, it’s better to be prepared.
Who needs an estate plan?
Everyone should have an estate plan. If you own anything of value, you will need a plan for how to pass it on. The thing often overlooked is that a plan can make life a lot easier for your loved ones, who won’t want to be thinking about financial and legal matters as they grieve and handle your funeral arrangements.
4 common estate planning myths
To help drive home the point that everyone should have an estate plan, let’s dispel some common myths that exist around estate planning.
Myth 1: I’m young so I don’t need to worry about it.
Even someone who’s 30 will probably have multiple bank accounts, a retirement account, debts, and personal property that needs to go somewhere should they die. It’s frightening to think about your own death, but life is unpredictable and it’s a lot easier for your loved ones if you create a plan before you die.
In some cases, you can also save money by creating your plan now. For one, a life insurance policy will be significantly cheaper when you’re young and healthy than when you’re in your 50s or 60s. You can clearly see that in this breakdown of life insurance costs.
Myth 2: I don’t need a plan since my spouse just gets everything.
Even if you’re married, you and your spouse should each have a plan. An estate plan will prevent people from contesting ownership of your things and then potentially dragging out the disbursement of assets for months or more. There are also unique situations: what if your spouse dies before you or soon after you? Things could get messy if neither of you has a written plan.
At the very least, a clear plan will reduce the number of decisions your spouse and loved ones have to make while they’re grieving.
Myth 3: My family will know what to do.
While we like to think that our family and friends will follow our wishes after we pass away, it’s hard to guarantee that without a legal document instructing them on what to do. Unfortunately, people may act unexpectedly when a larger inheritance is a possibility. There are also seemingly small things you may not even consider but that could lead to disagreements, like who will get that box of old pictures in your closet.
Myth 4: Once I create a plan, I’m done.
It’s vital that you keep your plan and all documents current. If you divorce, do you still want everything to go to your ex-spouse? What happens if one of your beneficiaries dies before you do?
Regularly check your list of beneficiaries and make sure that all your documents still reflect your current wishes.
What actually happens to an estate after you die?
It’s easier to understand the estate-planning process if you know what happens to your estate when you pass away.
Everything you own at the time of your death becomes your estate. Then, the estate goes through the probate process, where a probate court decides what happens to your assets.
If you had a will, the court uses the will as their guide. If you didn’t have a will or if it was invalid for some reason, you are considered to have died intestate and the court uses local intestacy laws to decide who inherits your assets.
What is probate?
Probate is the process of verifying that your will is legal and that your final wishes are carried out. A will does not help your estate avoid probate. It simply makes the process smoother because the court can use it as a guide to what you wanted.
For most small estates, probate is a pretty simple process that can be completed relatively quickly. However, things may slow down if someone contests your will, which means they challenge what’s in it. Perhaps they feel they were wrongfully excluded or that they deserve something other than what the will says they'll receive. Contesting a will can drag out the probate process for months and potentially cost a lot in lawyer or court fees.
If you don’t have a will, your estate still goes through a probate court. The difference is that a judge will appoint someone to handle disbursing your assets. However the cost of a will can be affordable.
Who handles your estate?
Ideally, you have created a will that names someone as your executor. The executor of your estate, also called a personal representative, manages your estate through the probate process. They handle tax bills, debts you hadn’t paid off, and other matters affecting your estate. The executor also oversees the disbursement of your assets to beneficiaries.
Most people nominate their spouse or child of legal age as an executor, but you can choose anyone. However, the person you nominate is allowed to decline, so make sure to choose a contingent executor or two.
If you don’t name an executor before you die, the probate judge will choose an administrator.
Taxes on your estate
Your executor handles all tax bills for your estate. The money comes out of the estate, normally from your bank accounts. If necessary, the executor may need to (and has the right to) liquidate assets to pay off certain debts.
Your executor will file an income tax return for you and for your estate if it earns income, such as a rental property might. The executor will also handle any property taxes.
Very wealthy estates also need to think about estate tax.
Estate tax
Estate tax applies to your estate before anything is distributed to your heirs, but it only affects wealthy estates.
As of 2021, the first $11.7 million of your estate is exempt at the federal level, which will go up to $12.06 million in 2022. You only pay tax if your taxable estate is worth more than the current exemption, and so very few people actually pay federal estate tax. (Any assets passed to a surviving spouse are also exempt.) If your estate is worth that much, your executor is responsible for determining your taxable estate, filing the proper forms, and paying the tax bill.