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Allen and Hodgman | Family Based Green Cards
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Family Based Green Cards

   

There are two classes of family based Green Cards:

  • Immediate relatives are the spouses, unmarried minor children, and parents of U.S. citizens. The great advantage of this category is that there are no quotas, and no waiting periods beyond the time needed to process the necessary applications.
  • The preference categories are subject to quotas. As a result, there are waiting periods that depend on the category and the country of origin.

The categories are:

  1. The first preference consists of the adult, unmarried children of U.S. citizens.
  2. The second preference is divided into two parts: the spouses and minor children of U.S. permanent residents (2A), and the adult, unmarried children of U.S. permanent residents (2B). This is the only family category available for permanent residents.
  3. The third preference consists of the married adult children of U.S. citizens (including their spouses and children).
  4. The fourth preference consists of the brothers and sisters of adult U.S. citizens (including their spouses and children).

In contrast to the immediate relative class, there are limited numbers of visas in each of the preference categories. In addition, no country can contribute more than 7% of the total world-wide immigration to the United States. As a result of this quota system, people with approved family-based petitions are not allowed to immigrate to the United States or adjust status until their “priority date” becomes current. Your priority date is the date your U.S. relative filed an immigrant petition on your behalf. Every month the State Department issues a visa bulletin.  This visa bulletin announces what priority dates are current. The backlogs can range from current (meaning there are enough visas to meet the existing demand) to more than twenty years (fourth preference from some countries).

There is a two-step process in family based cases. First, the U.S. sponsor files an immigrant relative petition called an I-130 with Citizenship and Immigration Services (USCIS). After the petition is approved and the priority date becomes current, the foreign relative can apply to a U.S. consulate abroad for an immigrant visa. If the foreign relative is already in the U.S. in a legal status, the relative can file an I-485 to adjust status to that of a permanent resident, without leaving the United States. Waivers may be available in some cases to persons not in legal status. In the case of an immediate relative in the U.S., both the I-130 and the I-485 can be filed at the same time. After processing, the case is usually referred to a USCIS  local office for an interview.

The sponsors of all family based applicants must sign a legal document promising to support the immigrant financially if necessary. This is called an “Affidavit of Support.” Income tax returns and other evidence must be provided to show the sponsor has enough income to meet this obligation. If the sponsor lacks adequate income, a co-sponsor may be needed.  The Affidavit of Support is filed with the application for an immigrant visa or application for adjustment of status, not with the I-130.  Anyone who signs an Affidavit of Support must be resident in the United States, not in a foreign country. As a result, your sponsor must be resident in the U.S. at the time you immigrate.

In many situations it is very important for a child to immigrate before reaching the age of 21. For instance, the children of beneficiaries in the preference categories can immigrate with their parents; once they turn 21, then cannot. Similarly, the child of a U.S. citizen is no longer an “immediate relative” after turning 21. A recent law, called the Child Status Protection Act, “freezes” the age of children in certain circumstances. This law is complex. Consult with an immigration lawyer if a child is expected to turn 21 before the immigration process is complete.

What if you are planning to get married and one of you is a U.S. citizen? There are three options.

  • You can get married first, while the foreign spouse is still outside the United States. Then you can file the I-130, wait for it to be approved, and then apply for an immigrant visa. Once the visa is approved, you can travel to the U.S., and enter the U.S. as a permanent resident.
  • If you are already in the U.S. in legal status, or are eligible for a waiver, you can file the I-130 and adjustment application together. If the adjustment application is approved, you will become a permanent resident without leaving the U.S.
  • The other option is to apply for a K-1 “fiance(e)” visa. You must file an I-129F petition with USCIS, then apply for a K-1 visa at a U.S. consulate abroad. Once you have your K-1 visa, you can travel to the U.S. and be admitted as a K-1 nonimmigrant. You then have ninety days to get married. Once you are married, you must apply for adjustment of status.

Which option is best? It depends on your individual circumstances, and on processing times for the different petitions involved at the offices where you will be filing. The key is to consult with an immigration lawyer before you get married, while you still have all options open.

What about entering the U.S. as a tourist, then getting married and adjusting status? The government may see this as a fraudulent attempt to avoid the correct immigration procedures, especially if the marriage occurs soon after the entry, and if it appears to have been planned in advance. The penalty for fraud is permanent exclusion from the United States. Don’t try this dangerous shortcut!

More information on U.S.-Canada marriages.

Family based immigration is more complex than ever before. We can help you find your way through the legal maze.