How do I bring my Family to the US or allow family to stay in the US?

I-130 Petition for Alien Relative

In family immigration, anyone who is a U.S. citizen (or a permanent resident) can file an I-130 petition to have their immediate relative or preference relative lawfully immigrate into the United States. Immediate relatives have no waiting time, while preference relatives may have a very long waiting time.

The definition of an immediate relative is: spouses, parents, and children (under 21 and unmarried). To file a petition for parents, only a U.S. citizen may file the petition, and that son or daughter must be 21 years or older at the time of filing. Spouses of the filing citizen who have been married to the sponsor for less than two years must adhere to special rules.

The definition of a preference relative include: a U.S. citizen’s son or daughter who is unmarried but over 21 (F1), a US citizen’s married son or daughter whether or not under or over 21 (F3) and brothers and sisters of U.S. citizens (F4). Also included in preference categories are the spouses and minor children of lawful permanent residents (F2A) and lawful permanent resident’s unmarried sons or daughters who are over 21 years of age (F2B). Preference relatives will not be able to obtain permanent residence until priority dates are current.  The Visa Bulletin published by the Department of State at [provide link] shows the date that is current for each immigrant visa classification.

Process:

The sponsor relative files an I-130 immigrant petition [link], for each foreign national relative.  If the sponsor is a lawful permanent resident filing for a spouse located outside the U.S., then one I-130 will account for spouse and all unmarried children under 21 at the time of filing.  The filing must contain the filing fee, the correct forms and sufficient documentation to show the relationship of the relative to the sponsor. If the foreign national relative is outside the U.S. the visa case will go through consular processing. If the foreign national relative is in the U.S. in a legal nonimmigrant status, entered the U.S. in a legal nonimmigrant status, or was “admitted” to the U.S. through a port of entry, the beneficiary of the I-130 may be able to file an I-485 application to adjust their status to lawful permanent residence. There are some exceptions to these rules and circumstances may vary.

Wait Times:

Not everyone has to wait!  Immediate Relatives are spouses of US citizens, a parent of a US citizen child over 21, and a child of a US Citizen so long as the child is under 21 and unmarried at the time of the petition being filed. Everybody else who qualifies for an immigrant petition through family must wait in line.

In the U.S., there are yearly permanent immigration limits set by the Department of State, using visa numbers, in accordance with legal limits. The number of visas available is determined by case category, and country of chargeability (where someone is born). These numbers are shown in the DOS visa bulletin, each month. To determine the time for obtaining a visa, there are two factors: priority date and preference status.

Priority date is set on the day an I-130 petition is filed; this, effectively, sets the family’s “place in line” for immigration purposes.

Preference status is determined through the use of a numerical system, according to the immigration status of the petitioner.  In this system, FB stands for Family-Based, and the number/letter following denotes the preference level (1-4, and A-B).

For a U.S. citizen petitioner, visas for immediate relatives (spouse, parent, and unmarried children under 21 years) are available right away, with no waiting period or concerns regarding yearly immigration limits. Waiting periods for non-immediate relatives of a U.S. citizen (or any relatives of a permanent resident) can range from years to more than a decade.

A U.S. citizen petitioners’ other, non-immediate eligible family members are given preference as follows:

FB1      Unmarried sons and daughters (21 and older)
FB3      Married sons and daughters
FB4      Brothers and sisters

A lawful permanent residents’ eligible family members are given preference as follows:

FB2A   Spouse
FB2A   Unmarried sons and daughters (under 21)
FB2B   Unmarried sons and daughters (21 and older)

While being an immediate relative has its benefits by having an immediate visa available, the one advantage of a preference petition is that the immediate family members of the preference beneficiary are eligible to receive a derivative immigrant visa so long as they are either the spouse or unmarried child under age of 21.  Preference relatives have this benefit, called “derivative beneficiary” privileges, which means they can include their spouse and/or minor children in their initial I-130 petition (one, single petition for the family). However, this benefit does not extend to immediate relatives, whose spouse and/or children must file their own petition. What this means is that if the petitioner is a US citizen filing for his or her immediate relatives (spouse or unmarried children under the age of 21), the US citizen must file an independent immigrant petition (I-130) for each. 

Where does the visa process take place?

This depends on the location of the beneficiary, and the beneficiary’s current status or eligibility to seek to adjust status to lawful permanent residence while in the U.S. For a beneficiary living outside the U.S., who will not be entering the U.S. before their visa case is complete, the processing will be handled at their U.S. consulate with jurisdiction.   The process to get to the U.S. Consulate with jurisdiction over the foreign family member begins with the immigrant petition (Form I-130) filed with the USCIS in the US, through the National Visa Center in the US, and ends with an interview for the consular visa application process at the US Consulate in the foreign jurisdiction.

For a beneficiary already located in the U.S. – who was “admitted” through a port of entry and remains in legal status – they may be eligible to apply to adjust status (to become a green card holder) after a visa number is available, by submitting an I-485 to the USCIS. There are some important concepts to review in order to determine if the beneficiary of the I-130 is eligible for adjustment of status to include manner of entry or admission in the U.S., maintenance of status, work without authorization, material misrepresentations or false claims, criminal arrests or convictions, previous immigrant overstays or illegal entries, previous petitions filed on the beneficiary’s behalf, and many more.  These issues need the attention of an experienced immigration attorney in order to understand the implications and likely consequence to filing for adjustment of status.

Important links:

USCIS I-130 Petition for Alien Relative
USCIS I-485 Application to Register Permanent Residence or Adjust Status
USCIS I-864 Affidavit of Support
USCIS “How Do I Help My Relative Become a Permanent Resident?” (for U.S. Citizens)
USCIS Green Card for an Immediate Relative of a U.S. Citizen
USCIS Green Card for a Family Member of a U.S. Citizen
USCIS Green Card for a Family Member of a Permanent Resident
USCIS Visa Availability and Priority Dates
USCIS Adjustment of Status
USDOS Visa Bulletin

 

 


 

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