Many U.S. citizens and Lawful Permanent Residents (LPR) have overseas spouses and other relatives who want to come to the U.S. as immigrants or are in the U.S. who want to become permanent residents. For those who qualify, a family based immigrant visa may be one way to accomplish this goal. Unlike other types of immigrant visas that may be based on a person's education, accomplishments, employment or investment, a family based immigrant visa is based on the family relationship between the US citizen or LPR and the visa applicant (the foreign national relative).

Family Based Immigrant Visa

In general, family based immigration can be divided into two categories: immediate relative and family preference.

There is no yearly numerical cap for immediate relative immigrant visas. Dependent family members cannot accompany or follow to join the principal beneficiary of an approved immediate relative petition. The different types of visas for this category are:

  • The spouse of a US citizen (IR1)
  • The unmarried child (under the age of 21) of a US citizen (IR2)
  • An orphan who has been adopted abroad by a US citizen (IR3)
  • An orphan who is to be adopted in the US by a US citizen (IR4)
  • The parent of a US citizen who has reached the age of 21 (IR5)

  • There is a yearly numerical cap for immigrant visas falling under the family preference category. Qualifying dependent family members can be included on the petition filed on behalf of the principal beneficiary and they can accompany or follow to join the principal beneficiary based on his or her approved petition. The different types of visas for this category are:

  • An unmarried son/daughter (who is 21 years old or older) of a US citizen (first preference-F1)
  • The spouse, minor son/daughter of a permanent resident (second preference-F-2A) and unmarried son/daughter (who is 21 years old or over) of an LPR (second preference-F-2B)
  • A married son/daughter of a US citizen (third preference-F3)
  • The brother/sister of a US citizen, age 21 or over (fourth preference-F4)
  • Note: Because there is a yearly numerical cap for visas in the family preference category, there is often a waiting period (that may be several years) based on a priority date that corresponds to the date of filing of the preference relative petition. For certain countries (China, India, Mexico, Philippines), the wait can be lengthy. After the priority date is reached (becomes current), the applicant can begin the immigrant visa processing steps if he/she is outside of the U.S. or apply to adjust status in the U.S., if he/she is in the U.S. in lawful status and otherwise eligible to file for permanent residence status.

  • The Process of Obtaining Permanent Residence through a family based petition

    Consular Processing

    If the applicant is outside of the U.S. or is not eligible to adjust his/her status in the U.S. and the case is forwarded to the NVC, the NVC will issue processing instructions once the priority date of the petition is within the filing period as set by the Department of State. The steps that follow include submission of certain fees, forms, civil documents, and an Affidavit of Support (Form I-864) by the petitioner. Once the NVC completes the review of the submitted documents and the case is documentarily complete, the NVC will place the applicant in queue for the scheduling of an interview at the applicable U.S. embassy. The applicant will be required to bring certain documents to the interview including a medical examination along with certification that certain vaccinations have been obtained.

    Adjustment of Status in the U.S.

    If a foreign national is already in the United States in lawful status or otherwise eligible to adjust status, he/she may apply for permanent resident status (LPR) based on an immediate relative or family/employment preference petition. Form I-485 (Application to Register Permanent Residence or Adjust Status) is filed with USCIS along with supporting documents. An applicant for adjustment of status is eligible for work authorization as well as travel document (any plans to travel into or outside of the U.S. should always be discussed with your attorney) during the pendency of the adjustment application. In most cases, an interview will be scheduled at the USCIS Field Office where an Immigration Officer will determine the applicant's eligibility for permanent resident status.

    Provisional Unlawful Presence Waivers

    Unlawful presence in the US for more than 180 days gives rise to inadmissibility. However, for certain immediate relatives of US citizens seeking immigrant visas, there is the possibility of obtaining a provisional unlawful presence waiver prior to leaving the US for the immigrant visa interview abroad. Spouses of U.S. citizens or permanent residents and children of U.S. citizens can apply for provisional unlawful presence waivers before leaving the United States for their consular interview.

    The provisional unlawful presence waiver addresses the unlawful presence of an immigrant visa applicant and does not cover other grounds of inadmissibility. Thus, an immigrant visa applicant can still be denied his/her visa on other grounds. For example, an applicant may be ineligible for an immigrant visa because of a conviction of a crime of moral turpitude or for having committed fraud or misrepresentation of material facts in seeking to obtain a visa. It should be noted that there may be other types of waivers available for some of these other grounds of inadmissibility.

    Child Status Protection Act

    The Child Status Protection Act (CSPA) was implemented in order to provide relief to children who turn 21 and age-out of a preference category (as they are no longer a "child" under the Immigration and Naturalization Act) due to visa backlogs or processing delays. For applicable cases, CSPA allows a child's age to freeze and thereby preserve the status of "child" rather than aging out. The method of calculating the CSPA age differs based on the immigration benefit sought and applies to derivatives of asylum and refugee applications, children of U.S. citizens and lawful permanent residents, and derivative children of family and employment petitions, and diversity visa applications.

    Same sex spouses

    Same sex spouses of U.S. citizens and Lawful Permanent Residents (LPRs), along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses.

    Nonimmigrant fiancé(e) (K) visas

    In addition to petitions for an immigrant visa, there is also a petition for alien fiancé(e), Form I-129F. A U.S. citizen can bring his/her fiancé(e) to the U.S. by filing a petition (I-129F) with USCIS and the fiancé(e) will then go through consular processing to obtain a K-1 nonimmigrant visa. For this visa, along with other requirements, the US citizen petitioner and the fiancé(e) must have the intent to marry each other within 90 days of entering the US (on the K-1 visa). Following the marriage, the K-1 beneficiary will file his/her application for adjustment of status with USCIS. Note that if the fiancé(e) does not marry the U.S. citizen spouse, he or she is ineligible for adjustment of status based on a subsequent family or employment based petition filed on his or her behalf.

    Form I-751 (Petition to Remove the Conditions of Residence, Form I-751)

    Once the foreign national relative's application for adjustment of status is granted or once he/she has entered the US with his/her immigrant visa, he/she becomes an LPR. In the case of a marriage that is less than two years, the LPR status is conditional. A joint petition by the conditional permanent resident and his/her spouse must be filed within 90 days prior to the 2 year anniversary of being granted conditional status. The couple must demonstrate a genuine marriage in order for the conditions to be removed. There are certain situations in which Form I-751 can be filed without the petitioning spouse if the petitioner qualifies for a waiver of the joint filing requirement. Such situations include a marriage that was entered in good faith but later terminated due to divorce or annulment, the death of the U.S. citizen spouse after marriage, or the battery or extreme cruelty suffered by the foreign national relative at the hands of the petitioning U.S. citizen spouse. A waiver may also be granted if the conditional resident is able to show that termination of his/her status and removal from the U.S. would result in extreme hardship.

    Refugee/Asylee Relative Petition

    A refugee who entered the US within the past 2 years or was granted asylee status within the past 2 years, may petition for certain of his family members to obtain derivative refugee or asylee status. He/she may petition for his/her spouse and/or child (unmarried and under 21 when he/she first applied for asylum or refugee status) by filing Form I-730 (Refugee/Asylee Relative Petition). In some cases, USCIS may grant a waiver of the 2-year filing deadline for humanitarian reasons.

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