Promoting family unity is a basic principle underlying U.S. immigration law. Therefore, it is not surprising that family-based immigration is the most common path to obtaining U.S. permanent residency. U.S. citizens and U.S. permanent residents may petition for, or “sponsor,” certain close family members to become permanent residents as follows:
U.S. Citizen Sponsor
- • “Immediate Relatives” – These include the spouses, children under 21, and parents of U.S. citizens.
- • Unmarried Sons and Daughters over 21 (Family-Based 1st Preference)
- • Married Sons and Daughters (Family-Based 3rd Preference)
- • Siblings (Family-Based 4th Preference)
- • Fiancé(e)s
U.S. Permanent Resident Sponsor
- • Spouses (Family-Based 2nd Preference)
- • Children under 21 and Unmarried Sons and Daughters over 21 (Family-Based 2nd Preference)
In most family-based preference categories, with the exception of immediate relatives of U.S. citizens, only a limited number of immigrant visas are available within the annual cap for individuals from each country and within each preference category. An immigrant visa is available based on the “priority date” of the beneficiary (the individual being sponsored). The priority date is the date the immigrant visa petition is received by the U.S. Citizenship & Immigration Services (USCIS). Consequently, there are often long waiting periods before the beneficiary may become a permanent resident. These waiting periods are determined for each family-based preference category according to country of birth and are released every month by the Department of State (DOS) in their Visa Bulletin, available on the DOS website.
Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate USCIS Service Center or U.S. Embassy or Consulate abroad. As mentioned above, the receipt date of the I-130 petition by USCIS establishes the beneficiary’s “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on preference category and visa availability. When the I-130 petition is approved and the “priority date” becomes current (i.e. after any applicable visa backlog has passed), the beneficiary may apply for an immigrant visa at a U.S. Embassy or Consulate abroad or, if eligible, apply for adjustment of status to lawful permanent resident in the United States. An immigrant visa allows the beneficiary to become a legal permanent resident (“green card” holder) after admission to the United States pursuant to the immigrant visa.
It is important to note that approval of the I-130 petition alone does not provide any legal status or right to remain in the United States, nor does it allow for employment authorization. It is also important to note that filing an I-130 petition for a family member can make it more difficult for that person to obtain certain temporary visas requiring non-immigrant intent. Additionally, the beneficiary must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility.
We help husbands and wives and parents and children stay together through the family-based immigration process. This process, while it appears relatively simple, can become complex very quickly. Additionally, if the green card application is not prepared properly and fails to disclose the truth, consequences can be severe. Therefore, we recommend that immigration counsel be consulted before a visa petition is filed so that an individual’s eligibility for admission and any other possible issues can be thoroughly assessed prior to filing an immigrant visa petition.
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