Family-Based Immigration Provisions and Issues

Violence Against Women Act

Under the Violence Against Women Act, otherwise qualified victims of abuse committed by a U.S.-citizen or LPR spouse, ex-spouse, parent, or sibling may self-petition for permanent residence.

The Marriage Fraud Act

Adopted in 1986, the Marriage Fraud Act provides that an individual who obtains immigrant status as a spousal immigrant within two years of his or her marriage date is initially granted status as a conditional resident. The immigrating spouse is then required to file a petition to remove conditions prior to the second anniversary of the date the green card was granted. The process is intended to afford the agency an opportunity to “look back” on its decision to grant status to the immigrating spouse. USCIS gives high priority to the investigation of suspected marriage-fraud cases and the removal of aliens found to be a party to such marriages. A person found to have committed marriage fraud may be prosecuted and is permanently barred from being the beneficiary of an immigrant-visa petition filed on his or her behalf.

Same-Sex Marriages

Eligibility for a wide range of benefits under U.S. immigration laws depends on the definitions of “marriage” and “spouse.” On June 26, 2013, the U.S. Supreme Court held in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA), limiting the federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, is unconstitutional. Immediately following this decision, President Obama directed all interested U.S. government agencies, including U.S. Citizenship and Immigration Services and the U.S. Department of State, to ensure that the decision and its implications for federal benefits for same-sex, legally married couples are implemented swiftly and smoothly. Pursuant to this presidential directive, U.S. Citizenship and Immigration Services announced that it would review immigration visa petitions filed on behalf of same-sex spouses in the same manner as those filed on behalf of opposite-sex spouses.

Adopted Children

A U.S.-citizen parent may petition for the immigration of a child adopted while under the age of 16. As an anti-fraud measure, however, the law requires that the adopted child was under the legal custody of and resided with the adopting parent or parents for at least two years prior to filing the visa petition on the adopted child’s behalf. The law now provides that the two-year period of legal custody and coresidence may have taken place before or after the adoption. The applicant must document that the adoptive parent or parents exercised primary parental control during the period of residence.

Complex legal issues, frequently involving the interpretation of foreign laws, often arise in connection with the immigration of adopted children, stepchildren and children born outside of a legal marriage.