U.S. permanent residents (“green card” holders) may petition for, or “sponsor,” their foreign national spouses and unmarried children to become permanent residents of the United States. These preference categories have very long wait times before the sponsored family member may become a permanent resident, and we urge clients to look at other possible options to bring their family members to the United States. However, in many instances, this may be the only avenue available to family members outside the U.S.

Foreign national spouses and children (under 21) of permanent residents fall within the Family-Based Second Preference “A” (F2A) category. Unmarried sons and daughters (over 21) of permanent residents fall within the Family-Based Second Preference “B” (F2B) category. For these individuals, the I-130 petition must be approved and the “priority date” must be current (any applicable visa backlog must pass) before they may apply for immigrant visas or adjustment of status to permanent resident (“green card”). The length of the waiting line depends on the date the I-130 petition was filed, as well as the foreign national’s country of citizenship. Congress has limited the number of relatives who may immigrate under these preference categories each year so there is usually a waiting period before an immigrant visa number becomes available.

Spouse of a U.S. Permanent Resident

Permanent residents may petition for, or “sponsor,” their foreign national spouses to become permanent residents (“green card” holders) of the United States. The U.S. permanent resident petitioner must first file an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (USCIS). The I-130 petition must be accompanied by documentary evidence of the existence of a spousal relationship and evidence of the U.S. permanent resident sponsor’s legal status in the United States. Additionally, USCIS requires extensive evidence that the married couple’s relationship is bona fide, or genuine. A marriage entered into solely for immigration purposes is a crime for both parties, and bars the foreign national forever from having a visa petition approved on his or her behalf. Processing times for these petitions vary, and can take from several months to more than one year to approve. Once a petition is approved, the foreign national spouse may then apply for an immigrant visa at a U.S. consulate abroad, which allows him or her to become a permanent resident of the United States (“green card” holder) after entering the U.S. pursuant to the immigrant visa. Or, if eligible, the foreign national spouse may concurrently apply to adjust status to permanent resident while present in the United States.

If the permanent resident sponsor becomes a U.S. citizen during the processing of the foreign national spouse’s petition or while the foreign national spouse is waiting for a visa number to become available, the foreign national spouse’s preference category will automatically convert to that of “immediate relative” of a U.S. citizen, and he or she will no longer be subject to the waiting lines of the preference category system. Please see Spouse of a U.S. Citizen for more information.

Child of a U.S. Permanent Resident

Permanent residents may petition for, or “sponsor,” their unmarried foreign national children to become permanent residents (“green card” holders) of the United States. The U.S. permanent resident petitioner must first file an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (USCIS). The I-130 petition must be accompanied by documentary evidence of the existence of a parent/child relationship and evidence of the permanent resident sponsor’s legal status in the United States. In addition, if a child is born out of wedlock and the father is the permanent resident sponsor, the father must prove that the child was “legitimated” before the age of 18 or that a bona fide father-child relationship existed before the child turned 21.

In many family-based immigration categories (“preference categories”), there are long waiting lines, sometimes several years long, before the sponsored individual may obtain permanent resident status. The main factors in determining the length of time a child must wait to become a permanent resident are the child’s age and country of citizenship. Foreign national children of permanent residents fall under the Family-Based Second Preference category. Children under 21 fall within the Family-Based Second Preference “A” (F2A) category, while children over 21 fall within the Family-Based Second Preference “B” (F2B) category. For these individuals, the I-130 petition must be approved and the “priority date” must be current (any applicable visa backlog must pass) before they may apply for immigrant visas or adjustment of status to permanent resident (“green card”).

It is important to note that the enactment of the Child Status Protection Act (CSPA) may protect an individual’s immigration classification as a “child” (an unmarried person under the age of 21) when that individual turns 21 due to large backlogs and excessive processing times for visa petitions. Under the CSPA, a child’s age is determined by subtracting the amount of time the immigrant visa petition was pending with USCIS from the child’s biological age on the date on which an immigrant visa number becomes available, as long as the foreign national child applies for permanent resident status within one year of visa availability.

It is also important to note that changes in the foreign national child’s marital status or the sponsoring parent’s legal status can impact the child’s eligibility to apply for permanent resident status. For example, if the child of a U.S. permanent resident gets married before he or she obtains permanent resident status, then that child is no longer eligible for permanent residence under this category. However, if the sponsoring parent later becomes a U.S. citizen, then the parent may file a new petition for the married son or daughter (Family-Based 3rd Preference category).

Similarly, the sponsoring parent’s legal status in the United States can affect the foreign national child’s application for permanent residence. For example, if the parent becomes a U.S. citizen during the processing of the child’s I-130 petition or while the child is waiting for a visa number to become available, the foreign national child’s preference category will automatically convert to “immediate relative” if under age 21 or Family-Based First Preference if age 21 or older on the date of the parent’s naturalization, unless the sponsoring parent requests that the I-130 petition continue to be processed as a Second Preference case. In this case, the CSPA “locks in” the child’s age as of the date of the parent’s naturalization even if the child will obtain permanent resident status after turning 21.