Family Immigration

One basis on which an alien may legally immigrate to the United States is familial relationship.  The United States Congress values family reunification and the closer the relationship, the more quickly one may immigrate.  Immediate relatives of United States citizens are not subject to quotas or caps and do not have to wait in queue for visas to become available.  However, the more distant the family relationship, the longer one will need to wait to immigrate.  And some familial relationships are too distant to entitle an alien to any visa.

The law allots 465,000 family-based visas annually.  And this number does not include visas granted to immediate relatives of United States citizens because these applicants are not subject to numerical limits.  USCIS processes and certifies family-based visa petitions in about six to twelve months, but these processing times fluctutate and you should check directly with www.uscis.gov for current processing times.  The date USCIS receives the petition is the priority date of the application.  This date is very important because quotas are allocated by prority date.

Several factors influence the length of time an applicant must wait in queue before the priority date is "current."  When the priority date is current, the applicant may file for an immigrant visa, or to adjust status - the last step to obtain US permanent residence.  Factors influcing the wait include:

• Applicant's familial relationship to the United States petitioner
• United States petitioner's immigration status
• Age of the beneficiary
• Marital status of the beneficiary
• Applicant's home country

Preference Categories

The combination of the familial relationship and the status of the US relative determines the alien applicant's preference category.  The demand for available visas in each preference category influences the length an applicant must wait to receive one.  For example, the second preference category below is allotted 114,200 visas each year and the first preference category is allotted only 23,400.  But the demand for visas from the second preference category is generally much higher than from the second, so first preference applicants will generally be granted visas more quickly than second preference applicants.

The following familial relationships support an I-130 application and result in the indicated preference categories:

Family Relationships

US citizens and permanent residents may apply for family-based permanent status only for certain family members.  These include:

• Spouse
• Child
• Parent
• Son or Daughter
• Married Son or Daughter
• Brother or Sister

If an alien is the spouse of a United States citizen, he or she is an immediate relative and not subject to the annual limit on available family-based visas.  An alien who is the spouse of a Lawful Permanent Resident falls under the second preference category.

To qualify as a spouse under the Immigration and Nationality Act the husband and wife must be parties to a valid, subsisting marriage.  Validity is judged by the law of the place the marriage was celebrated.  And a religious ceremony alone may not be sufficient in some countries.

For example, Mexico does not legally recognize marriages created solely by a religious ceremony.  Thus, a Mexican national applying to the United States for a family-based visa as a spouse would not qualify if the marriage was created in Mexico solely by a religious ceremony.  Although the applicant could repair this situation by applying for this certificate in Mexico before filing the visa application, once the applicant files, he or she may suffer delays and other difficulties.

Prior marriages also may affect the validity of a current marriage for immigration purposes.  All prior divorces must be valid and final for the current marriage to be valid.  And the applicant should document both his or her prior divorces and those of the current spouse.  Some marital relationships require evaluation to assure that they are valid and subsisting.

To apply for a spousal visa, the US citizen or lawful resident spouse must file the petition for the alien spouse.  When this petition is approved, the alien spouse then files to adjust status to lawful permanent resident.  Although the alien spouse is entitled to work authorization (EAD application I-765) while awaiting determination of the application to adjust status, the speed and ease with which USCIS grants work authorization differs by USCIS Service Center as well as other factors.

Petitioning to Lift the Condition on Permanent Residence

Another important consideration for spousal visas is that the first two years of permanent residency for the alien spouse are conditional.  Shortly before the end of the two year conditional residency period the spouses must petition to have the condition lifted.  USCIS generally does not notify conditional permanent resident spouses that this must be done, but if the spouses do not timely petition to lift the condition, the alien spouse will be subject to deportation.  This is a date that must be carefully noted on calendar.

If the alien spouse's son or daughter acquired conditional permanent residency derived from the alien spouse, those children must also file petitions to remove the condition on permanent residency within 90 days of the conditional grant's expiration.  But children deriving conditional residency from an alien spouse may be included on the spouses' I-751 Petition.At the end of the two years, conditional residence ends automatically.  Thus an alien spouse who fails to petition to remove the condition is deportable at the end of the two years.  And the spouse who finds himself or herself out of status will begin immediately accruing unlawful presence in the United States implicating the three and ten year bars.  If the alien spouse is unlawfully present in the United States for more than six months, then the bar to reentry will apply.

If a married couple fails to timely file the Petition to Remove Condition on Permanent Residency, they may jointly file a waiver.  The waiver is filed on the same Form I-751 as the Petition.  While USCIS does grant waivers, they are not required to unless the petitioning spouses show good cause for their failure to file.  And USCIS's failure to notify the spouses' of this obligation is not good cause for a failure to file.

Children, Sons And Daughters, and Married Sons and Daughters

Children of United States citizens and Lawful Permanent Residents are considered immediate relatives and are not subject to the numerical limitations on family-based immigration   USCIS defines children as persons who are under 21 and unmarried, and defines offspring over age 21 as sons or daughters.

The parent-child relationship may be legally valid even though the child is born out of wedlock.  USCIS may accept the relationship if the law of the child's or father's residence or domicile recognizes the relationship.  This recognition may be satisfied where the father legally accepts paternity in either place.

USCIS also recognizes adopted children as children for immigration purposes.  But USCIS will only recognize them if they were adopted before age 16, and were in the legal custody of and resided with their parents for at least two years preceding the application.
Parent-child relationships that are not rooted in a valid marriage at the time of the birth may require legal analysis and proper documentation with the visa application.

Brothers and Sisters

Brothers and sisters of adult United States citizens may apply for lawful permanent residency from the fourth preference category.  USCIS recognizes a valid sibling relationship only if each sibling as a child satisfied the legal definition of child to a common parent.

Parents

A United States citizen may petition for his or her parent to be granted lawful permanent residency.  However, the petitioning United States citizen must be at least 21 years old and must have been a child to that parent (see children above) for immigration purposes before age 21.  This family-based immigration category is frequently misunderstood resulting in discrimination and anti-immigrant propaganda.  A person who illegally enters the United States and births a child here may not apply for a visa based on the status of that child for 21 years.

Family Priority Dates

To check current dates always refer to the US Department of State Visa Bulletin.