Immediate Relatives of U.S. Citizens and Family Preference System
The immediate relative venue has no cap or quota with regard to the number of visas available at any given time and relative(s) can migrate almost immediately without any waiting time. These family petitions are UNLIMITED.
The family preference system venue has caps and is controlled by numerical limitation quotas, which are applied to each of its categories and to the overall number of permanent resident visas issued per country, per year. These family petitions are LIMITED.
Unlimited petitions pertain to immediate relatives of a U.S. citizen where there is no limit to the number of visas available. Under this category, petitioners may sponsor:
* spouses of U.S. citizens
* unmarried children of U.S. citizens under the age of 21
* parents of U.S. citizens
Limited petitions pertain to a family-based preferences where the number of visas available is limited. Under this category, petitioners may sponsor:
* adult children (married or unmarried) and brothers and sisters of U.S. citizens
* spouses and unmarried children of current green card holders
The family based preference system as implemented by the U.S. Citizenship and Immigration Services (USCIS) establishes priority dates for beneficiaries and is indicative of how long one must wait before acquiring the sought-out status applies to close relatives immigrating through Legal Permanent Residents (LPRs) and U.S. citizens:
Preference Petitioner Relationship
1st US Citizen Unmarried adult children (21 years or older)
2A Permanent residence Spouses and minor children (under age 21)
2b Permanent residence Unmarried sons and daughters
3rd US Citizen Married sons and daughters
4th US Citizen Brothers and sisters
The U.S. Department of State issues monthly Visa Bulletins that help the general public locate each priority date for visas depending on backlogs and petitioner’s country of origin. Visit travel.state.gov for Monthly Visa Bulletins.
This family-based preference system bulletin offers valuable information about immigration guidelines and how immigrant visas are controlled by numerical limitations and how such limitations are allotted and show the determinations of cut-off dates for visas.
VISA PRIORITY DATE
The Visa Bulletin under the family-based preference system has multiple traits of which one needs to understand – the most important being the “Priority Date” by which one can gain a visa. The priority date is the date the alien relative petition (I-130) was properly filed with USCIS. If a petition is not properly filed, it will be rejected and the fee is non-refundable.
Based on this information, then one can determine whether this visa is “current,” or how long it will be before the visa becomes available.
Since there are many years between the time the petitioner files (I-130) and the available visas, one must take into consideration the multiple changes in circumstances that will affect a beneficiary’s status.
See snapshot side-by-side overview depicting each venue and its categories:
Immediate Relatives Family Preference System
UNLIMITED VISAS LIMITED VISAS
1.) Souses of US Citizens 1.) Adult children (married and unmarried) of US Citizens
2.) Unmarried minor children of US Citizens 2.) Brothers and sisters of US Citizens
3.) Parents of US Citizens over 21 3.) Spouses and unmarried children (both minor and adult of LPRs)
Must have an income of at least Must have an income of at least
125% of the federal poverty guideline 125% of the federal poverty
(see guideline below) guideline (see guideline below)
2009/2010 FEDERAL POVERTY GUIDELINE
1 Persons in family: 10,830 (125%: $13,538)
2 Persons in family: 14,570 (125%: $18,213)
3 Persons in family: 18,310 (125%: $22,888)
4 Persons in family: 22,050 (125%: $27,563)
5 Persons in family: 25,790 (125%: $32,238)
6 Persons in family: 29,530 (125%: $36,913)
7 Persons in family: 33,270 (125%: $41,588)
8 Persons in family: 37,010 (125%: $46,263)
NOTE: For families with more than eight (8) persons, add $3,740 for each additional person.
For immigration purposes, the following constitutes a family relationship
Spouse – this family relationship must be legally recognized and valid in the place it was established.Caution: If a married couple gets divorced within two years of its creation, then, it is presumed that the marriage was a sham and used solely for the purposes of immigration and will not be recognized. Further, a marriage must be in line with traditional and current law, which does not recognize same-sex, polygamous, incestuous, or proxy marriages.
Parent – this family relationship must meet the definition found at INA §101(b)(1) and may include stepparent, adoptive parent, and parent of child born out of wedlock.
Brother or sister – this family relationship must show that at least one child is of one common parent.
Child – this family relationship must meet statute definition found at INA §101(b) (1) and must be unmarried children under the age of 21. Further, subcategories include, legitimate child, stepchild, adopted child and orphan child.
There are several provisions under the Immigration and Nationality Act (INA) and of the Legal Immigration Family Equity Act (LIFE Act) that allows for adjustment of status.
Through these family-based petitions, one may gain lawful permanent resident (LPR) status by:
1. Consular process – done outside the United States at immigrant’s country of residence.
2. Adjustment of status – done in the United States.
These two options however, have intricate landmark provisions that require an immigration attorney to ensure proper filing(s).
One may qualify for adjustment of status via several venues:
* Qualifying family-based immigrant petition
* Qualifying employment-based immigrant petition
* Fiancèe-based admission to the U.S. (married within 90 days of entry)
* Asylee/Refugee-based admission into the U.S. for at least one year after being granted asylum status
* Diversity-based (lottery visa) where noticed has been issued by Department of State.
* Registry-based presence where one has been in the U.S. since before January 1, 1972.
* Cuban-based citizenship or nationality where one was admitted or paroled into the U.S. after January 1, 1959 (including spouses and unmarried children of Cuban-national).
* Other nationality-based programs (please consult our office).
Normally, these petitions are only available to those who are lawfully present in the United States. Exceptions allow for immediate relatives to adjust despite status violations and for employment-based applicants whose status violations do not exceed 180 days. For those who have violated status, they must go through consular process that often triggers three or ten year bars, which are difficult to overcome.
Section 245 of the Immigration and Nationality Act, provides for certain exceptions to the rule with adjustment of status cases. Section 245(i) permits certain individuals with old priority dates to pay a fine and adjust status.
Originally, the old priority dates expired on January 14, 1998, yet new legislation changed the cutoff date to April 30, 2001. This means petitions filed on or before this date are eligible to adjust status and gain a labor certificate but must pay a fine. This provision was enacted under the Legal Immigration and Family Equity Act of 2000 (“LIFE Act”), which extends into INA §245(i).
Section 245(k) permits certain individuals to adjust status under the employment-based immigrant petition so long as they have not been out of status for over 180 days.
Adjustment of status without penalty fee must meet the following criteria:
* Entered the U.S. legally
* Visa is currently available based on priority date
* Were not a crew member, alien admitted in transit without a visa, an alien admitted in S visa category, or exchange visitor admitted in the J visa category
* Not a non-immigrant admitted without a visa under visa waiver program
* Not inadmissible (see below for grounds of inadmissibility)
Grounds of Inadmissibility include:
1. Health-related grounds
2. Criminal-related grounds
3. National security grounds
4. Public charge
5. Labor protection grounds
6. Fraud or other immigration violations
7. Documentation requirements
8. Grounds relating to military service in the United States
9. Prior removals or unlawful presence in the United States
10. Other grounds
Consular Process
Under this group one may obtain permanent residence by attending consular processing in the immigrant’s country of origin. The individual may be residing in their country or in the United States. If they are in the United States then one must leave in order to attend a consular interview. What this means is that one must leave the United States and return to their country for consular processing.
Yet, if one is still in the United States and leaves the country, then this may trigger three and ten-year bars from re-entering United States. An applicant who chooses to apply for Consular Processing has no benefits of a work permit and advanced parole. Many applicants however, in unique circumstances, may chose consular processing for strategic purposes.
Another problem to be mindful of is the “age out” issue for a child applicant.
Immigration law defines a child as an unmarried individual under the age of 21.Essentially, in recent past if a child applicant reached the age of 21 while their application was pending, that child would lose their eligibility for a visa.
Yet, recent legislation was enacted under the Child Status Protection Act to change the “age out” issue and maintain its integrity on favor of the child applicant.
While this legislation resolved many of the “age out” problems, it is particular in nature and we ask that you consult our office to understand its provisions and how it may affect your circumstances.
