Immigration & Naturalization Law

Family-Based Immigration

Family-based immigration allows spouses, children, and other close relatives of U.S. citizens and permanent residents to seek legal status for their family members. As lawful permanent residents (LPR) with green cards, your family members can legally live and work in the United States. However, the immigration laws of the United States do not treat all family members equally.

Factors Impacting Family-Based Immigration

The waiting period for applying for legal status for relatives from another country depends on a few factors, including:

Extended Family Member Immigration

Direct family ties have preference over others. This justification determines which relatives qualify to immigrate to the U.S. and under which family preference categories they could be placed. Generally, spouses and minor children have a higher family preference category than parents or siblings.

Family members with less direct family bonds face longer waiting times. This typically means the relative will have to wait longer with the application in progress to obtain a green card.

Country-Based Quotas

There are also limits on the number of family members who can immigrate to the United States based on the country of origin. These quotas have a significant impact on individuals from four countries:

  • Mexico
  • China
  • India
  • The Philippines

Relatives from these countries can wait years before they are eligible for consideration to get their green cards.

Who Can Immigrate to the United States for Family Reunification?

A U.S. citizen can apply to have immediate family members to live and work in the United States. This generally involves filing a Form I-130, Petition for Alien Relatives. Family members who typically can have an immigrant visa immediately available are:

  • Spouses
  • Unmarried children under the age of 21
  • Parents (if you are 21 years or older)

Suppose your relative does not fall into any of the categories above. In that case, you should consider the following categories of family preference for other relatives of yours:

  • Unmarried children over 21 years old earn first preference (F1).
  • Married children of any age earn third preference (F3).
  • Siblings (if you are 21 years or older) earn fourth preference (F4).

If you are a lawful permanent resident of the United States, you can also file a family-based immigrant visa petition on behalf of the following relatives:

  • Spouses and unmarried children under 21 years of age earn second preference A (F2A).
  • Unmarried adult children over 21 years of age earn second preference B (F2B).

Each family member who comes to the U.S. must have a financial sponsor, including adult children, adult siblings, or legal parents. As the sponsoring relative, you must agree to be the financial sponsor by filing a Form I-864, Affidavit of Support.

How Does Family Preference Affect My Relative’s Immigration Process?

Direct family members of U.S. citizens (spouses and unmarried children under the age of 21) generally have shorter waiting periods during the process of immigrating to the United States.

For immigration purposes, there should always be an immigrant visa available for this close family connection. This makes the document review time shorter. It is possible they will obtain a green card faster.

USCIS Visa Availability

Other family members are subject to visas being available if they wish to come to the U.S. Every year the United States Citizenship and Immigration Services (USCIS) notifies people about the number of family visas to be used and who can process their application.

However, there are more applications for family-based immigrant visas than there are visas available, so the waiting list can be long.

When USCIS approves the visa application for family authorization, a United States consular officer issues the immigrant visa. Afterward, your family member can enter the country legally and become a permanent resident.

If the relative is within the United States, they can adjust their status with the I-485 Application to Register Permanent Residence or Adjust Status to obtain a family-based green card.

Family Immigration Forms and Documents

Another element that often delays the immigration process for family members is the number of documents that must be presented and processed. Furthermore, not all cases have the same degree of difficulty. According to USCIS, the required evidence to include in the I-130 includes:

  • Your evidence of U.S. citizenship, lawful permanent residence, or U.S. national status as the sponsoring relative
  • Evidence of family relationships, such as a copy of your marriage certificate, a relative’s birth certificate, or proof of a sibling relationship
  • Evidence of your marriage’s validity, if you are petitioning for a spouse
  • Proof of a legal name change (if applicable)
  • Two passport-style photographs (if applicable)

Even after the application is approved, the immediate relative must still meet other grounds of admissibility. Your relative must not have:

  • Health problems that pose a public health risk after a medical evaluation
  • Immigration violations in the U.S. (including overstaying a visa, unauthorized employment in the U.S., or entered the country unlawfully)
  • A criminal background

An attorney can help you understand the best avenue for family reunification. They can also explain what forms and documents you need to make an error-free application and avoid delays. Talk to an experienced lawyer for advice on getting a family preference visa.

Do Fiancées Qualify in the Family Petition Program?

A fiancé or fiancée does not directly qualify as a relative. If a foreign fiancé(e) wishes to travel to the United States to marry and live in the U.S., they must generally obtain a K1 nonimmigrant visa.

First, you must submit a citizen petition on behalf of your fiancé to a USCIS office. This is the Form I-129F, Petition for Alien Fiancé(e). If the application is approved, USCIS will send the approval to the United States embassy or consulate in your fiancé’s current country of residence. The fiancé will then have an interview with an immigration officer. The interview requirement will finalize the process for the K1 visa. If assigned the K1 fiancé visa, your fiancé will travel to the United States, and you must marry within 90 days.

You and your new spouse must meet these eligibility requirements listed above. You can later initiate an immigrant visa petition for permanent residency for a foreign family member. It should be noted that the application for adjustment of status is subject to evidence of a valid marriage.

What If I Would Like to Live and Work in the U.S. and I Have Family Already Living There?

If you want to be a lawful permanent resident based on family, only U.S. citizens or LPR relatives may sponsor a noncitizen for permanent residence. The following family-based groups are eligible to file for a green card for their noncitizen relative:

  • Immediate relatives of U.S. citizens (spouse, parents, children, or siblings)
  • Spouses and unmarried sons and daughters of lawful permanent residents

USCIS must approve the immigrant visa petition, I-130 Petition for Alien Relative. This petition must be submitted by your relative (sponsor) and must be accompanied by proof of your relationship to the requesting relative.

The Department of State must determine if a visa is immediately available to you, the alien, even if you are already in the United States. This will depend on the relationship you have with the applicant relative. You can check the status of available visas in the State Department Bulletin.

If you are already in the United States, you can apply to change your status to lawful permanent resident after a visa is available to you. If you are outside the United States when an immigrant visa becomes available, you must go to the United States consulate serving the area where you reside to complete the procedure.

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