Other Family Members Who Can Petition
In addition to spouses, U.S. citizens may sponsor their parents and children under age 21 for permanent residence. This category is known as “immediate relatives” and there is no limit on how many visas can be issued.
What are the Steps?
First, the U.S. citizen files an I-130 petition to establish the relationship
Then the foreign relative applies for permanent residence at either a U.S. Citizenship and Immigration Services (USCIS) office in the U.S. or at an American consulate abroad
What are the Preference Categories?
Family-based petitioners who do not qualify as “immediate relatives” fall under a preference category system, which is limited by statute to a certain number of persons each year. There are currently 480,000 family-based visas available per year. There is no cap on the number of visas allowed under the “immediate relative” category. However, the number of immediate relatives is subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year.
If an applicant does not qualify as an immediate relative, he/she may apply under one of four categories ranked in order of preference. Since numerical caps apply to these categories, visa petitions are ranked chronologically based on a “first come-first serve basis.” Because of the numerical cap, there are long waiting periods to obtain a visa in most of the family-based immigrant categories. The date the application is filed is called a priority date.
Non-Preference: Immediate Relatives
Immediate Relatives may immigrate to the United States on a family-based petition. This is the most attractive category because there is no limitation to the number of immigrants who may qualify under this category and, in most cases, visa numbers are immediately available for these individuals to apply for lawful permanent residence. Immediate Relatives include spouses, children, and parents of U.S. citizens. However, some additional definitions and clarifications are required:
- Age of Citizen: A U.S. citizen must be at least 21 years of age in order to sponsor his/her parents.
- “Child” Defined: Children are defined as natural-born (legitimate), adopted, step-children, or legitimated children.
- Widows and Widowers: A widow or a widower of a U.S. citizen qualifies under this category so long as the person submits a petition within two years of the death of his/her spouse and a remarriage has not occurred.
- Petitioning Parents: In order for a parent to petition for a child, the child must be unmarried and under the age of 21 to qualify.
- Petitioning Children: In order for a child to petition for his/her parent, the child must be at least 21 years of age.
- Petitioning Spouses: If a couple has been married less than two years at the time the visa application is submitted to USCIS, the immigrant will be granted a two-year period of “conditional residence” status.
- Condition Removal: To remove the conditions, a second petition (Form I-751) must then be submitted to USCIS. The couple may or may not be required to attend a second interview to establish the validity of their marital relationship.
- Validity of Marriage: The validity of the marriage is best established by demonstrating that the parties cohabitated, purchased assets jointly, and commingled income in joint accounts. It is important that the second petition is submitted before the expiration of the conditional status.
- Death of citizen spouse/Divorce/Abuse: USCIS has special procedures for situations where a spouse dies, the parties divorce, or domestic abuse occurs which exposes the immigrant to extreme emotional and/or physical abuse at the hands of his/her U.S. citizen spouse. Under these circumstances, the immigrant may submit a petition to remove the conditions on his or her status. Since such petitions are difficult to get approved, it is extremely important to contact an experienced immigration attorney.
Unmarried sons or daughters (21 or older) of U.S. citizens.
Spouses and children (under 21) of lawful permanent residents.
Unmarried sons and daughters (21 or older) of lawful permanent residents.
Married sons or daughters of U.S. citizens and their unmarried children under 21.
Brothers or sisters of U.S. citizens (U.S. citizen must be 21 or older) and their unmarried children under 21.
If the number of applicants exceeds the number of visas available under a particular category, that category is considered oversubscribed. As a result, the petitions will be processed and visas issued in the chronological order in which the petitions were filed until the numerical cap has been reached each year. The filing date of the petition is called the applicant’s “priority date.” A visa cannot be issued until the priority date is reached. This means that there may be a lengthy waiting period. Sometimes that period may exceed several years.
Contact us for additional information on family visas and guidance through what can be a complex process.