Family Visas

Immediate Relatives | The Preference System

United States citizens and lawful permanent residents can help certain family members immigrate to the United States. This is a two step process. The first step is the family visa petition. The second step is the application to become a permanent resident. Each step involves different legal and factual issues.

The Petition

The form that starts the immigration of a family member is the visa petition and in this case it is called the "Petition for Alien Relative". Only a United States citizen or lawful permanent resident can file a visa petition on behalf of a family member. The petitioner is the citizen or resident who files the visa petition and the beneficiary is the family member who is going to immigrate.

Application to Immigrate

Once the visa petition is approved, the relative can proceed to step two and apply to immigrate. This is referred to as becoming a lawful permanent resident, immigrating, or obtaining a green card. They are often used interchangeably and basically they all mean the same thing … that the person becomes a lawful permanent resident of the U.S. and gains the right to live and work in the U.S. permanently.

How soon the person can apply to immigrate depends on what kind of visa petition was filed. A person who qualifies as an immediate relative of a United States citizen can immigrate quickly. He or she can apply for permanent resident status as soon as the visa petition is approved and all the paperwork is taken care of.

Other relatives of a U.S. citizen or resident can immigrate if they qualify for a visa under the preference system. The number of people who can immigrate each year under the preference system is limited. For this reason, preference system immigrants may have to wait for some time, after the visa petition is approved before they can actually immigrate.

People can immigrate in one of two ways; by applying for immigrant visa processing in another country at a U.S. consulate or by applying for adjustment of status to permanent residency at a USCIS office in the United States.

When applying to immigrate, the applicant must prove that he or she is admissible as an immigrant. An applicant is admissible if he or she does not come within a ground of inadmissibility. But an applicant who is inadmissible can still sometimes immigrate if USCIS agrees to waive (forgive) the ground of inadmissibility.

Special rules apply to married couples. Some people who immigrate through their marriage must go through a third step to immigrate. Under the Immigration Marriage Fraud Amendments, most applicants through marriage obtain conditional permanent residency at the time they immigrate. The married couple must return to USCIS two years later to have the conditional status removed.

Immediate Relative Category

A person qualifies as an immediate relative if he or she is the:

1. spouse of a U.S. citizen
2. child of a U.S. citizen or
3. parent of a U.S. citizen if the citizen is at least 21 years of age.

Child

To be a child the person must meet two important criteria:

1. the person must be unmarried and under the age of 21 and
2. the person must have a child-parent relationship that USCIS recognizes.

Natural born children who were born in wedlock are considered children under the immigration laws. But other children such as step-children, adopted children, adopted orphans, and children born out of wedlock may qualify. It is important to consult with an immigration practitioner to discuss the specific requirements these other children must meet in order to be considered a child under immigration law.

Spouse

People who are legally married and have a bona fide marriage relationship are spouses under immigration law. In addition, widows and widowers may be considered spouses for immigration purposes if they have been married to a U.S. citizen for at least two years before the citizen died.

The Fiance(e) Petition

This "K-1" petition allows a U.S. citizen (but not a lawful permanent resident) to petition for a fiancé(e) to enter the United States in order to marry him or her. This is not an immediate relative visa petition and in fact it is a non-immigrant visa petition that allows the fiancé(e) to enter the U.S. for a limited time and purpose: to marry the U.S. citizen within 90 days of arrival. The fiancé may also bring unmarried children under the age of 21.

To qualify for this visa, the couple must show that they have met in person within the past two years, that they intend to marry and that they are legally able to marry.

After the marriage the alien spouse must apply for adjustment of status to permanent residency at a USCIS office in the U.S. in order to remain in the U.S. The government will grant the alien spouse conditional residence status for two years after which time, the couple will have to apply to remove the conditional status so that the alien spouse can remain in the U.S.

Son or Daughter

A son or daughter is a person who once qualified as a child but is now over 21 or married.

Brother or Sister

Siblings are persons who were once 'children' with at least one parent in common either by adoption or by blood relation.

The Preference System

When we discuss family visas in the preference system, we are talking about people who immigrate through the first, second, third and fourth preference categories. Only a certain number of people who are born in each country can immigrate to the U.S. each year under the family preference system.

Each time someone immigrates to the United States, one visa is charged to(subtracted from) the numbers of visas set aside for the country where the person was born. If more people per year want to immigrate than there are visas, that country develops a waiting list of 'visa backlog'.

To determine a rough estimate of when an alien might be able to immigrate in the future a consultation with the U.S. State Department's Visa Bulletin, which is updated monthly is important.

Have the following information ready:

1. the priority date of the visa petition
2. the country of chargeability
3. the alien's preference category

Priority Date

The date that the I-130 visa petition is filed with the USCIS becomes the beneficiary's 'priority date" in the preference system. That date establishes a person's place in line to wait for a visa, and also determines when the alien can immigrate. The priority date is the date that the USCIS received the petition not the date it was approved.

Country of Chargeability

As a general rule, the person's place of birth is the country or territory to which a visa will be charged. In some situations an exception may apply and immigrant applicants can 'cross charge' to a different country. For example, family members who are immigrating together may be able to cross charge all of their visas to the country with the shortest waiting list.

The Preference Categories

This is the category of visa petition which one may file under.

Derivative Beneficiaries

People who immigrate under the preference system have an important right: their spouse and children can immigrate along with them, so the family will not be split up. The principal beneficiary is the person immigrating under the preference system. The spouse and children who can immigrate with him or her are the derivative beneficiaries.

Ask yourself the following question to see if someone can immigrate as a derivative beneficiary?

1. Will the principal beneficiary immigrate through a preference visa petition?
2. Does that person have a spouse or child?