Family reunification has long been an important concept in immigration law. However, not every family relationship will support an application for lawful permanent residence.
Under the Immigration and Nationality Act, there are two basic categories — immediate relatives and preference immigrants.
Immediate relatives are the spouses, children under 21, and parents of a U.S. citizen. For parents of a U.S. citizen, the petitioning child must be at least 21 years of age.
The definition of immediate relative includes widows of U.S. citizens provided that the alien was the spouse of the citizen for at least 2 years prior to the citizen’s death and was not legally separated from the citizen at the time of his or her death.
There is a distinct advantage to qualifying as an immediate relative of a U.S. citizen as there is no annual numerical limitation and therefore no visa backlogs for this category.
Preference Immigrants fall into four categories depending on the familial relationship.
First preference includes unmarried children over 21 of U.S. citizens.
Second preference has two subcategories:
Spouses and children under 21 of lawful permanent residents;
Unmarried children over 21 of lawful permanent residents.
Third Preference includes married children of U.S. citizens.
Fourth Preference includes brothers and sisters of U.S. citizens over 21.
There is no category for aunts, uncles, nieces, nephews, or cousins of citizens or permanent residents. Each of the preference categories is subject to an annual numerical limitation of immigrant visas.
Because there are significantly more preference immigrants applying for visas than there are visas available every year, there is currently a backlog of at least several years for each category.
The annual numerical limitation of immigrant visas is specified per country therefore some countries, such as Mexico and the Philippines, have longer backlogs than other countries.
The Department of State issues a monthly Visa Bulletin which notes the progress in each of the categories.
To view the latest bulletin, click on the “Department of State Visa Bulletin” for the most recent month in our “News Updates” section of our website.
The spouse and children under 21 of the principal alien are considered derivative beneficiaries and are allowed to immigrate with the preference immigrant. However, there are no derivative beneficiaries for immediate relatives.
The first step in filing a petition based on one of the above familial relationship is to file an I-130 with the regional service center of the USCIS.
If the alien is an immediate relative, once the case is approved it will be sent to the U.S. consulate in the alien’s home country for immediate processing. If the alien falls into a preference category, the filing date of the I-130 becomes the priority date of the application.
Immigrant visas are issued to preference applicants in chronological order according to the priority dates established at filing.
If the immediate relative of a U.S. citizen is already in the United States based on a lawful entry through a tourist or other nonimmigrant visa, a one-step adjustment of status application may be filed with the local district office of INS.
This application would include the simultaneous filing of both forms I-130 and I-485 as well as additional documentation.
If the immediate relative of a U.S. citizen entered the United States unlawfully, then they need a law called 245(i) to be passed by Congress.
The 245(i) law allows persons who entered unlawfully who are already eligible to adjust their status to do so from within the United States.
This law is very important for persons unlawfully present in the United States for over a year, who could be barred from reentry to the U.S. for a period of ten years if they were to leave the country to process through a U.S. Consulate.
Congress has never passed a 245(i) as a permanent law, but periodically will pass temporary periods of validity.
Consult with immigration attorney Cynthia Irvine to determine if the law has been enacted recently and if you are eligible.
If you file an application and it turns out you were not eligible under the law, the INS will initiate deportation proceedings if you are in the country unlawfully.
After the adjustment of status application is filed with the local INS office, there will be an interview at the local office. In this interview, the petitioner and beneficiary must establish their relationship and the petitioner must demonstrate that he or she can economically support the alien beneficiary through the filing of an Affidavit of Support.
The petitioner must meet minimum income requirements in order to sponsor the alien but if they do not meet the requirements, they may require a co-sponsor.
If petitioner and beneficiary are spouses they must demonstrate the validity of their marriage through the presentation of various economic documents such as joint bank statements, joint income tax returns, apartment lease or home mortgage together, or joint credit card statements.
Spouses of U.S. citizens who were married within 2 years of filing the application for lawful permanent residence will be granted “conditional permanent residence” for a period of two years.
After two years, the couple must file another application to remove the conditions on the residency demonstrating evidence of their continued marital relationship.
If the couple is no longer married, the alien spouse must file a waiver application demonstrating that the marriage was entered into in good faith.
These provisions were enacted by Congress to prevent sham marriages.