The Role of Litigation in Family-Based Immigration Cases

Family Immigration Cases: The Impact of Legal Proceedings

Many families have made the move to the United States by using family-based immigration. Once one person in the family is able to immigrate and get established as either a naturalized U.S. citizen or a lawful permanent resident, they can then sponsor their family members for immigration. Those family members can then eventually sponsor their family members, and this process can continue to help bring everyone together again. However, the process rarely works this smoothly. In reality, immigration is complex, challenging, and extremely time-consuming and often requires litigation and the help of an immigration attorney.

Eligibility Criteria and Administrative Process for Family-Based Immigration

In general, there are two types of visas for family-based immigration. Immediate relative visas are available for those who have a close family relationship with a U.S. citizen. A qualifying close family relationship includes being the spouse, child, or parent of a U.S. citizen. The number of immediate relative visas is not capped each year, which means these visas are generally easier to get.

The other visa type for family-based immigration is the family preference visa. This visa is for those who have more distant relationships with a U.S. citizen (such as a sibling) and the spouse or unmarried child of a lawful permanent resident. These visas are limited to 226,000 each fiscal year.

To apply for a family-based immigration visa, your sponsoring relative will need to submit Form I-130, which is the Petition for Alien Relative. This application will be processed by the U.S. Citizenship and Immigration Services office. If it is approved, it will be sent on to the Department of State’s National Visa Center. You will be able to submit any requested supporting documents and pay your visa fees. You will also have to go through an interview and medical exam with the National Visa Center. You are able to have an attorney present at the interview. Once all of these steps have been completed, you will be notified as to whether your visa application was approved or denied.

Common Reasons Family-Based Immigration Petitions Are Denied

Around 85 percent of family-based immigration petitions are approved, but that means that 15 percent are denied each year. Some of the most common reasons these petitions are denied include:

  • Failure to establish a qualifying relationship. You must be able to provide proof of your relationship with the sponsor. Blood family relationships are generally easy to prove with birth certificates, but marriages can be more difficult because USCIS wants to make sure it is a legitimate marriage and not just for the purpose of immigration.
  • Lack of financial resources by the sponsor. Your sponsor must be able to show that they have the financial means to support you until you are eligible for work. Not having enough income can cause the application to be denied.
  • Being ineligible for a Green Card. There are various general eligibility requirements for a Green Card, and failing to meet any of these can result in a denial. These include but aren’t limited to being inadmissible to the United States, currently facing removal proceedings, or having certain criminal convictions.
  • Incorrect, missing, or incomplete forms. Clerical errors are a common reason that visa applications are rejected. This could include missing paperwork, not providing English translations of the documents, or forgetting a signature. These are usually the easiest issues to fix.

Your notice will include a reason for the denial. You can take this letter to an immigration attorney to find out what your options are.

Legal Options If Your Immigration Petition Was Denied

Getting a notice of denial can be extremely disappointing, but you do have some legal options. If you were found inadmissible to the United States, you may be able to apply for a waiver. If the issue was a simple clerical error or you believe the denial wasn’t warranted, you may be able to appeal the decision to the Board of Immigration Appeals. In some cases, you may have to start the process over and submit an entirely new application. An immigration attorney can help you through this process, including advising and representing you through the appeals process.

The Immigration Litigation Process

Immigration litigation for visa denial appeals can involve presenting additional evidence at the appeal hearing or arguing that the initial decision was made incorrectly. This is a process in which you need an immigration attorney who has a deep understanding of the U.S. immigration procedures and rules. Other examples of immigration litigation include deportation defense, challenging the circumstances of a detention, and appealing denied naturalization applications.

The exact process for immigration litigation varies depending on the situation, but most involve scheduling a hearing with the U.S. Citizenship and Immigration Services office or the Board of Immigration Appeals. Your attorney will review your case, the reason for the denial, deportation, or detention and the specific laws that are relevant to your case. They will create a plan to argue your position at the hearing and present evidence and testimony that supports your case.

Immigration litigation is not something you want to go through alone. You need an experienced attorney who is able to translate the complex immigration rules and procedures into easy-to-understand language. An attorney will advocate for you and ensure that all proper procedures are followed. If you need an immigration attorney to handle immigration litigation for a family-based immigration case, call 866-511-3422. The legal team at Gilliam Law is standing by to take your call and talk to you about your options.


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