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Family-Based Immigration

U.S. citizens and lawful permanent residents can petition their alien relatives for green card status. These relatives must be their spouse, children, parents, and siblings. Extended relatives such as aunts, uncles, and grandparents would not eligible. Qualified family members may immigrate as “immediate relatives” of U.S. citizens or through a “preference” system established for relatives of U.S. citizens and lawful permanent residents.

Immediate Relatives v. Preference System

Immediate relatives of U.S. citizens will have a faster immigration process than those immigrating through the preference system. The United States controls legal immigration through a numerical limitation called “quotas”. These quotas are applied to all immigrant visas distributed to each country per year. When there are more applicants than there are visas, a backlog can develop. Family members immigrating through the preference system are subject to the annual quotas and to a wait time determined based on country and preference category. Whereas immigrant relatives are exempt from the quotas and do not have to wait for visas to become available.

Immediate Relatives

Immediate relatives are certain close relatives of U.S. citizens. They are not subject to the numerical limitations of U.S. immigration. The following family members can qualify as immediate relatives:

  • Spouses of U.S. citizens;
  • Children of U.S. citizens who are unmarried and under 21; and
  • Parents of U.S. citizens age 21 or older.

Family Preference System

Family members immigrating under the family preference system are subject to numerical restrictions. Congress limits the number of foreign individuals who can be admitted to the United States as family-based immigrants to 480,000 per year. This means that there may be a long wait time before a visa becomes available depending on the preference category.

The preference system categorizes the relatives as follows:

  • First (F1): Unmarried son or daughter (age 21 or over) of U.S. citizen parent
  • Second(F2):

(F2A) Spouses or unmarried children (under 21) of permanent residents
(F2B) Unmarried sons and daughters age 21 and older of permanent residents

  • Third (F3): Married sons and daughters of U.S. citizens
  • Fourth (F4): Brothers and sisters of U.S. citizens age 21 or over

Visa availability is determined based on the country, preference category, and the “priority date.” The priority date is when an immigrant petition is filed for the alien relative. Below is an example of the family preference chart, which is updated by the U.S. Department of State every month. To see the most recent chart please visit here.

Example 1:

A U.S. citizen filed an immigrant petition on September 10, 2014, for her unmarried son who is 22 years old and born in mainland China. The son would fall under the F1 preference category under “CHINA-mainland born” and the priority date for the petition would be September 10, 2014. Since the priority date is earlier than the date listed in the visa bulletin (September 15, 2014), a visa for her son is immediately available.

Example 2:

A lawful permanent resident filed an immigrant petition for her husband who is born in Australia. The petition was filed on January 1, 2020. The husband’s visa availability date would be listed under F2A preference category’s “All Chargeability” section. The “C” listed stands for “Current”, which means an immigrant visa is immediate available.

Qualifying Relationships for Family-Based Visas

Below is an overview of relevant relationships for the family immigration process.

Petitioner
The petitioner is the member of the family who is either a U.S. citizen or a lawful permanent resident (green card holder).

Beneficiary
The beneficiary is the family member who is related to the Petitioner and is seeking permanent resident status.

Spouse
This is the husband or wife of the Petitioner. The marriage must be legally valid in the place where the marital relationship was created. The marriage must be “bona fide”, which means the Petitioner and spouse married for love and not for circumventing immigration laws.

Parent
This includes the mother or father of the Petitioner. The parent can be a stepparent, adoptive parent, and a parent of a child born out of wedlock.

Brother or Sister
This is the sibling of the Petitioner. The brother or sister must share at least one parent with the Petitioner.

Child
The Petitioner’s children who are unmarried and under the age of 21. This includes children born out of wedlock, stepchildren, adopted children, and orphans.

  • Born out of wedlock: Children born out of wedlock is eligible to obtain immigration benefits through the natural mother. To obtain immigration benefits from the natural father the parent-child relationship (i.e., cohabitation, financial support) must have been established before the age of 21.
  • Stepchildren: Children can obtain immigration benefits through a stepparent if the parent-child relationship was under 18 at the time of the marriage creating the relationship. The stepparent-stepchild relationship may continue after the death of the natural parent or divorce, so long as the stepparent is actively maintaining parental interest. Stepchildren who are U.S. citizens and over 21 may petition for their stepparents for immigration to the United States.
  • Adopted Children: Adopted children are eligible to immigrate if the adoption occurred before age 16. The child must have been in the legal custody of and resided with the adoptive parent for at least two years. The adoption must be legally valid in the jurisdiction where it took place.
  • Orphans: U.S. citizens can petition for orphans under 16 years old. Both parents of the child must have died, disappeared, abandoned the child. If there is a surviving parent, he or she must lack the capacity to provide for the child and irrevocably release their legal custody of the child.

Application Process

Step 1 – Form I-130 Petition for Alien Relative

The application for lawful permanent resident status begins with the filing of the Form I-130, Petition for Alien Relative with supporting documents with the U.S. Citizenship and Immigration Services (USCIS). The supporting documents must establish the U.S. citizenship or LPR status of the Petitioner, and the familial relationship with the Beneficiary.

Step 2 – Adjustment of Status or Consular Process

Once the I-130 petition is approved, the Beneficiary can obtain permanent resident status through adjustment of status or consular process. If the beneficiary already resides in the United States, he or she may apply for adjustment of status with USCIS. If the beneficiary resides outside of the United States, or is otherwise not eligible for adjustment of status, then he or she would have to apply at a U.S. consulate abroad.

Adjustment of Status

The foreign relative can adjust to permanent resident status without leaving the United States. The basic requirements for adjustment of status are as follows:

  • Immediate Relatives: Must have entered the United States legally and must not be otherwise inadmissible. Unauthorized employment would not prohibit immediate relatives from adjustment of status.
  • Preference Category: Must have entered the United States legally and maintained lawful nonimmigrant status (including no unauthorized employment) and must not be otherwise inadmissible.

The adjustment of status requires the submission of a Form I-485, Application to Register Permanent Residence or Adjust Status. For immediate relatives or preference category applicants who is immediately eligible to adjust status, the Form I-485 can be filed at the same time as the Form I-130. Other applicants must first wait for the Form I-130 to be approved and the priority date to become current.

Consular Process

Foreign relatives residing abroad or ineligible to adjust status must apply at a U.S. consulate or embassy in their home country. After the I-130 petition is approved, the notice of approval will be forwarded to the National Visa Center (NVC). The NVC will create a case number and send out an initial notice for case processing. The notice will provide instructions on using Department of State’s Consular Electronic Application Center (CEAC) to check case status, pay fees, and complete steps required for case processing. The foreign relative must complete the DS-260, Online Immigrant Visa and Alien Registration Application and upload the required documents. Once completed, the foreign national will wait for an interview date to be assigned.

Affidavit of Support

An affidavit of support is an integral part of the family-based immigration process. The purpose this process is to establish that the foreign relative will not become a public charge after admission. The Form I-130 petitioner will act as the sponsor and must demonstrate that he or she has sufficient household income to support the foreign relative. If the petitioner does not have sufficient household income, then he or she can satisfy the financial requirement by counting certain assets belonging to the petitioner, the foreign relative, or other members of the household. If the financial requirement still cannot be met, then the petitioner may incorporate a joint sponsor to co-sponsor the foreign relative.

The sponsor must demonstrate the means to maintain an annual income equal to at least 125 percent of the federal poverty income line. Below is a screen shot of the poverty guidelines as of March 2020 for states except Alaska and Hawaii. For more information please visit here. Based on the chart, a petitioner sponsoring a spouse must meet the annual income requirement of at least $21,550.

The petitioner must complete and submit the I-864, Affidavit of Support under Section 213A of the INA along with supporting documentation. If the sponsor is petitioning for only one family member and is employed (not self-employment) and will be using only his or her income to satisfy the requirements, then a simplified version I-864EZ can be used.

Step 3 – Interview

The foreign relative will need to go through an interview with a USCIS adjudicator (for adjustment of status) or consular official (for consular process). During the interview, the adjudicator or consular official will review the information and supporting documents submitted, and make determination on the bona fide nature of relationship if the petition is based on marriage.

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