Family Based Immigration

Family Immigration is One of Three Primary Ways to Immigrate to the U.S.

There are three main ways to immigrate to the U.S. — through a business, through a humanitarian program, or through a family member. The U.S. immigration system currently is designed to favor keeping close family members together. Therefore, immigrating through a relative often is faster or more efficient than the humanitarian or business options. However, only certain types of close family members are able to actually petition for others, and wait times for many categories are extremely lengthy.

Who Can Petition for Family Members?

In order to be able to petition for one of your family members to join you in the U.S. on a permanent basis, you must be either a U.S. citizen or a lawful permanent resident (green card holder). If you have some other kind of temporary immigration status, such as that of a student, or specialty occupation worker, you typically can also have your spouse and children join you in the U.S. on a temporary basis. However, you yourself must be a U.S. citizen or a lawful permanent resident to get a green card for a close family member.

The type of relationship you have with your family member also directly affects what options are available. Note first that only certain types of family members are “qualifying relatives” who are eligible to immigrate. Children, spouses, parents and siblings can relatives you can petition for, while uncles and cousins (for example) do not qualify.

What Are the Two Main Categories of Relatives Who Can Receive Visas?

U.S. immigration law further breaks down qualifying relatives into two main categories: (1) immediate relatives, and (2) non-immediate relatives. Those who are immediate relatives can immigrate faster to the U.S. than non-immediate relatives since they do not have to be added to a wait list. This wait list is based on the “preference category” the immigrant falls under, since immigration law only allows a certain number of visas to be issued to those who are not immediate relatives.

Immediate Relatives Category

There are three types of immediate relatives:

  • Parents of U.S. citizens (the petitioner must be older than 21)
  • Children of U.S. citizens (the children must be under 21 and unmarried)
  • Spouses of U.S. citizens (the petitioner can be under 21 but old enough to marry)

Non-Immediate Relatives Who Fall Within Preference Categories

Immediate relatives are viewed as having the most importance in a family and therefore are not subject to an annual numerical cap. However, all of the other qualifying relatives are limited to a certain number each year and many have extraordinarily long wait times. Here are the other types of family relationships that are eligible for visas:

  • First Preference: Unmarried, adult sons and daughters of U.S. citizens (an “adult” is 21 or older.)
  • Second Preference (2A): Spouses of U.S. permanent residents, unmarried children (“child” is under 21) of U.S. permanent residents
  • Second Preference (2B): Unmarried adult sons and daughters of permanent residents (“adult” is 21 or older.)
  • Third Preference: Married sons and daughters (any age) of U.S. citizens
  • Fourth Preference: Brothers and sisters of adult U.S. citizens (“adult” is 21 or older.)

What Types of Immigration Options are Available for Your Relative?

Remember that if your relative simply wants to come to the U.S. on a temporary basis, you do not need to petition for her. Instead, your relative should simply apply for a “non-immigrant” visa that is the best fit for the temporary stay. For example, your relative may want to study in the U.S. for a year, and so she could apply for an F-1 student student. Or if your relative simply wants to visit and travel in the U.S. for six months, she could apply for a B2 tourist visa.

However, if your relative wants to move permanently, rather than temporarily, to the U.S and become a green card holder (permanent resident), then you do in fact need to petition for her. The two main permanent immigration options available to certain relatives are (a) green card and (b) fiance visa. The green card category is much broader than the fiance visa option and so let’s quickly confirm what is involved with the fiance visa option first.

Fiance Visa Option

If you are a U.S. citizen who is engaged to a foreign national and would like to be married in the U.S., then this is typically a great option. There are several requirements that must be met to qualify for this visa, including: (a) you have met your fiance in person in the last two years; (b) you both intend to marry each other in 90 days of your fiance’s entry into the U.S.;  (c) you both are legally eligible to marry (i.e. not married to someone else); (d) you can financially support your spouse-to-be; (e) you have a genuine relationship that you can prove to USCIS and the U.S. State Department.

Keep in mind that although the fiance visa is technically a “non-immigrant” visa, it is always processed at U.S. consulates overseas along with other “immigrant” visas because your spouse is planning to join you on a permanent basis. Therefore once you get married in the U.S. you need to proceed with “adjusting status” and apply for your new spouse’s green card.

Green Card for Your Relative Through an Immigrant Visa

Overview of Immigrant Visa

If you are a U.S. citizen or a lawful permanent resident of the U.S., then you are able to file an immigrant visa petition for certain qualifying relatives (as described above) so they can immigrate to the U.S. and become permanent residents themselves. The immigrant visa itself is the “sticker” that goes in your relative’s passport and it is simply a travel permit that allows her to travel to and enter into the U.S.

An immediate relative is able to act upon an approved petition without having to wait an additional period of time, which is required for non-immediate relatives. This latter category unfortunately has to wait until the “priority date” (date of filing) becomes “current,” to actually apply for a visa. The waiting time can stretch to over fifteen years in many preference categories.

To understand the end goal of this lengthy process, be encouraged that once your relative enters the U.S. with her immigrant visa, she immediately becomes a permanent resident. At the border, a CBP officer stamps her passport to show that she is now a lawful permanent resident even though her green card will only arrive to her address a few weeks later. So, in a sense, someone entering with an immigrant visa is a “green card holder” immediately even though her plastic green card will only show up later

Key Stages in Immigrant Visa Process

The paperwork and supporting documents required to process an immigrant visa for your relative are truly extensive. The first main stage in the process starts with the petitioner filing form I-130 with USCIS, along with supporting evidence. If you are filing for your spouse, an additional form is required where detailed background information about your spouse’s employment, address, and family history.

Once USCIS approves the I-130 form, then the second main stage begins, which is called “consular processing.” The beginning of this stage involves submitting a detailed online visa application called a DS-260, along with proof that you can support your relative financially. This “affidavit of support” must be accompanied with more supporting evidence and it is initially processed through the National Visa Center (NVC)

The final step in the consular processing stage involves attending an interview at the designated consulate or embassy in your relative’s home country. After visiting an authorized physician for a medical exam, your relative will be required to present herself and original supporting documents at a specific time at the U.S. consulate or Embassy. Although these interviews do not last very long, refusal rates are increasing due to the policy of “extreme vetting” implemented by the current U.S. administration. For those who are approved, the consulate will take a few days to place a visa stamp in your relative’s passport and then she is free to travel to join you in the U.S.

Green Card for Your Relative Through Adjustment of Status

Overview of Adjustment of Status Through a Family Member

In general, for most family members, it is necessary to follow the steps described above and apply for an immigrant visa in order for your relative to receive a green card. However, in a more narrow set of circumstances, your relative can avoid having to apply for a visa at a consulate abroad, and can instead become a permanent resident through “adjustment of status.”

The main requirements to adjust status through a family relationship include that your qualifying relative (a) be physically present in the U.S. at the time you apply, (b) have entered with inspection (and not snuck across the border), (c) not have “immigrant intent” when entering the U.S. (and only had intent to visit), (d) not be “inadmissible” for any other reason, (e) be an immediate relative or have a priority date that is current.

Key Steps in Applying to Adjust Status

The main difference in applying to adjust status compared to applying for an immigrant visa is that adjustment of status avoids the second “consular processing” stage of the immigrant visa process. Thus, when adjusting status, the entire process is handled by USCIS within the U.S. and does not involve the State Department or a consulate overseas.

When an immediate relative applies to adjust status, she is able to move forward with a “one step” process. This is faster than the “two step” adjustment of status which requires that the petitioner first file an I-130 form and then the beneficiary must wait for the priority date to become current before filing the I-485 adjustment of status form (the second step). In contrast, when the parent, spouse, or child of a U.S. citizen seeks to adjust status, all of the necessary forms can be filed at the same time in “one step,” which certainly streamlines the process.

In addition, the adjustment of status applicant will simultaneously apply for both a work permit (Employment Authorization Document or EAD) and an international travel permit (known as “advance parole”). This work permit and international travel permit will arrive as one single plastic card and in approximately 3-5 months from filing the adjustment of status application. Finally, the adjustment of status interview itself will be scheduled at the closest USCIS field office in approximately 9-12 months from the date of filing the adjustment packet. Both family members — petitioner and beneficiary — will be required to attend the interview with the USCIS officer. If all goes well at the interview, the applicant’s green card will be mailed directly to her within approximately 3-4 weeks after the interview.