FAMILY BASED IMMIGRATION

 Securing legal residency in the U.S. through a family relationship can be confusing. It can be difficult for families to know what immigration options are out there and which ones are right for them. A citizen or a lawful resident of the United States may petition for his(er) family to immigrate to the U.S. The family relationships subject to immigration benefits consist of the immediate family, the parents, the siblings, grouped in four categories called “preferences”. 

 Since the annual number visas for each category is limited, the visa is issued by the “priority date” of the petition. Depending on the category and whether the beneficiary is from China, Mexico, India or the Philippines, the waiting time due to visa backlogs vary from one category to another. Each month, the Department of State issues a Visa Bulletin showing the visa availability status for each category. http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html  

Appealing a Denied Application

If your application for a family-based visa has been denied, you have 30 days to appeal; if it’s been revoked, you have 15 days to appeal. If an appeal before the Administrative Appeals Office or the Board of Immigration Appeals is unsuccessful, you have another 30 days to appeal that decision.

Do Lawful Permanent Residents Have "Immediate Relatives"?

A lawful permanent resident, also known as a green card holder, does not have any immediate relatives until he or she becomes a United States citizen through naturalization.

What Are the Benefits of Being an "Immediate Relative"?

USCIS, per the laws and regulations of the Immigration and Nationality Act, treat immediate relatives very differently than other relatives. For example, the spouse of a US citizen who entered the United States with inspection but is out of status, is eligible for adjustment of status. A parent of a US citizen who is at least 21 years or older will have their unauthorized work forgiven. In addition, immediate relatives have a visa immediately available, which means there are no long delays to getting a green card.

Getting a Green Card Inside the US

The process an immigrant will go through to receive a green card entails filing Form I-485 at the same time their US citizen petitioner files Form I-130. Alternatively, an applicant can submit Form I-485 at any point after their petitioner files Form I-130, as long as the I-130 is either pending or approved.

As long as the immediate relative entered the United States in a lawful manner, he is permitted to adjust status in the U.S. even if he overstayed his visa or worked in the U.S. without authorization.  He does not need to apply for a waiver to do so.

 

Getting a Green Card Outside the US

If the immediate relative is outside the US, he is eligible to become a permanent resident through consular processing. Consular processing occurs when the Department of State schedules an immigrant visa interview after the USCIS has approved the I-130 petition. The immediate relative becomes a permanent resident when they are admitted to the US.

The Department of State notifies applicants when they are able to apply for an immigration visa. However if the application for an immigrant visa is not submitted within the time period of one year following the notice from the Department of State, the petition may be terminated.

Green Cards for Immediate Relatives Links

Who Can Apply for a Family-Based Visa?

Immediate Relatives

To apply as an immediate relative of a U.S. citizen, you must be one of the following:

  • Spouse is a U.S. citizen

  • An unmarried child of a U.S. citizen, and under 21 years of age

  • A parent of a U.S. citizen who is at least 21 years of age

To apply as a non-immediate relative of a U.S. citizen, or as a relative of a LPR (lawful permanent resident) under the “family-based preference categories,” you must be one of the following:

  • 21 years of age or older, unmarried, and have a U.S. citizen parent

  • 21 years of age or older, married, and have a U.S. citizen parent

  • 21 years of age or older, and have a U.S. citizen sibling

2

K-1 Visa for Fiances of U.S. Citizens 

You can also apply as:

 

  • The fiancé of a U.S. citizen (K-1 nonimmigrant)

  • The child of a fiancé of a U.S. citizen (K-2 nonimmigrant)

  • Widow(er) of a U.S. citizen who passed away after you were married

A U.S. citizen, under certain requirements, may petition for his(er) fiancée to have a visa to travel to the U.S. where (s)he will marry the U.S. fiancé within 90 days from his(er) arrival. This benefit is not available to a permanent resident. After the marriage in the U.S., the beneficiary – now newly married – will apply to adjust his(er) status to permanent resident. The beneficiary’s unmarried children under 21 year-old are allowed to accompany the K-1 visa beneficiary under K-2 visa and to later adjust status to permanent resident as well. 

Although K-1 visa is based on an “engagement” or a promise to marriage, such promise must also be made in good faith, and that the parties must prove that they are willing and capable to marry and that such promise to marriage has been made in compliance with the custom and culture norms in the country of the foreign fiancé(e). 

3

Children

The Immigration and Nationality Act has specific definitions for who may be deem children for the purpose of immigration benefits. That includes children born in wedlock, step children (under 18 year-old at the time of the marriage), legitimated children, adopted children or natural children to American citizen. The filial relationship must exist at the time of the petition and to have the benefit as a child where that applies, the beneficiary child must be not older than 21 year old at the time the visa is issued to him(er). Situations may arise where, due to the processing time length, a child may be under 21 at the time of the filing of the petition but over 21 at the time of the visa issuance. This “aged out” situation is remedied to an extent with the Child Status Protection Act” (http://www.uscis.gov/files/pressrelease/CCA_102504.pdf.) 

4

Parents

Only U.S. citizens of over 21 year-old may file immigration petitions on behalf of their parents. This benefit is not available to permanent residents. Since parents are considered immediate family, a petition for parents is not subject to the number of visas limit in any given year. 

5

Conditional Status and the Removal of Conditions 

If a petition is filed, and granted for the immigration of the foreign spouse and his(er) dependents where the underlined marriage was less than 2 years old, the resident status thus obtained is called “conditional” and must be subject to an application to remove conditions that must be jointly filed by the petitioner and the beneficiary with 90 days preceding the expiration of the Conditional Resident card. If the petitioner and beneficiary fail to apply the removal of condition within the 90 day period, a waiver might be obtained under certain circumstances. 

The removal of conditions may also be applied by the beneficiary alone where there was spousal abuses or death of the petitioner spouse. 

 
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