Family-Based Immigrant Visa: Who Qualifies?

You and several of your friends, all of whom are foreign nationals, living and working in the US get together for dinner one night. Being from all over the world the conversation naturally turns to home and family. Jose, who is in the US on an H-1B visa, wants to bring his little sister to the US to take care of his children. Benjamin, a green card holder from Israel, talks fondly of his fiancé and wants to have her come to the US so they can get married. Puna, who just filed for naturalization, talks of bringing his aging mother and his sister to the US to live with him. Albert, from England who is in the US as a permanent resident wants to bring his wife over. And Kenji, who was naturalized just last week, talks of bringing his parents and cousins from Japan to the US.

The big question of course is which of these family members will qualify for a family-based immigrant visa. Each of you have heard so many stories of who you can and can't bring to the US, but none of you is sure what the law really is. Just about that time the doorbell rings and Dan, another friend, arrives. As you fill him in on the conversation you find out that his brother-in-law is an attorney who specializes in immigration law and that he can get some answers for you. Let's see what he found out. We present here a short overview of the law as it pertains to family-based immigration.

The US Congress, by conferring permanent residence eligibility upon certain family-based groups, has properly recognized the importance of family unification in American immigration law. The Immigration and Nationality Act (INA) provides for immigrant visas for certain foreign nationals based upon their relationship to a U.S. citizen or legal Permanent Resident. Family-based Immigration falls under two basic categories: Unlimited (Immediate relatives of U.S. Citizens) and Limited (the "preference" categories). Approximately 500,000 family-based immigrant visas are available each year.

Unlimited Family-Based Immigrant Visas or the Immediate Relatives of United States Citizens:

The first category of the Family-Based Immigrant Visa is for Immediate Relatives of the US Citizens. Within this group are spouses of US citizens, unmarried children under the age of 21 of a US citizen, and the parents of a US citizen who is over 21 years old.

a. Spouses: The spouse of a US citizen will qualify as an immediate relative. However it is very important that the marriage is legal in the country where the marriage took place, and it is not in contravention of US laws.

The actual ceremony, in the jurisdiction where it was performed, must be legally recognized. And all legal requirements, including registration of the marriage, must be met.

For example, a "common law" marriage must meet the legal requirement and be recognized in the country where the couple lives to qualify for immigration purposes. The simple fact that two people have been living together (no matter how long they have lived together) does not constitute a legal marriage.

If either the husband or wife has been previously married, a legally valid divorce must have taken place. This can be a problem in countries that do not recognize divorce.

b. Children: To qualify as a child for immediate relative status the child of a US citizen must be unmarried, and under the age of 21 years. Within the context of US immigration law "child" is very specifically defined. This definition includes children born both in and out of wedlock, but for those born out of wedlock the qualifications for immigration differ depending on which parent is sponsoring the child. For children born in wedlock, the relationship to either the father or the mother will be sufficient to qualify the child for an immigrant visa.

For children born out of wedlock, the relationship through the mother will always qualify because it can be easily proved. However, the relationship through the father will qualify in only two circumstances. The father must show that (1) evidence exists, such as the father financially supporting or living with the child, which clearly demonstrates a parent/child relationship, or (2) the father, while in legal custody of the child and before the child's 18th birthday, has "legitimized" the child in the manner prescribed by law in the country where the father and child were living.

Stepchildren, adopted children, and "eligible orphans" are also included in the definition of "child." Stepchildren are treated like a child of the petitioner as long as the stepchild relationship was created before the child's eighteenth birthday. Adopted children are considered children for immigration purposes as long as they were legally adopted before the age of sixteen, and they have been in the legal custody and have physically resided with the adopting parent for 2 years. Eligible orphans must meet the very specific definition of "orphan" to qualify.

c. Parents: The parents of a US citizen are eligible for a Family-based immigrant visa, provided that the US citizen child who is filing the petition for his/her parent is at least 21 years of age. Additionally, the US citizen must be the "child" of the parent seeking permanent residence, as defined by US immigration law and described above.

Advantages of Family-Based Immigrant Visa for Immediate Relatives (IR) of a US Citizen:

Seeking permanent residence as an immediate relative of a US citizen has substantial advantages. The main advantage of the immediate relative status is that the number of visas issued each year is not subject to any numerical limits. The greatest disadvantage is that there is no derivative status for dependents of immediate relatives; every family member has to independently qualify as an immediate relative of the US Citizen to be issued a Family-based Immigrant Visa.

Qualified immediate relative applicants are never forced to spend time on a waiting list, and if the immediate relatives are legally in the U.S. and are otherwise qualified, they can always file for Adjustment of Status. However, spouses of US citizens, who have been married for less than 2 years at the time they get their green cards, are subject to a 2 year period of "conditional" residence. Because of this some of these individuals may elect an employment-based path to permanent residence.

Limited Family-Based Immigrant Visa, or Preference Categories for Family Members of Citizens or Residents:

The second group of Family-based Immigrant Visas is for certain family members of US citizens and Legal Permanent Residents. While the US Congress has found that these relationships provide important family ties, they do not raise to the level of the immediate relatives. Unlike the visa category for the Immediate Relatives of US citizens, the number of immigrant visas available to the preference categories is subject to annual numeric limits. These family members have been separated into preferences based on the closeness of the relationship of the beneficiary to the petitioner. Because of the numerical limitations on each of the categories there is generally a waiting period before a beneficiary (the sponsored relative) can get a visa and come to the US. The wait times are listed in the State Department Visa Bulletin and range from 4 ½ years for the spouse of a permanent resident to 22 years for the brother or sister of US citizen originally from the Philippines.

Within the preference categories are unmarried children of US citizens, spouses and unmarried children of Permanent Residents, married children of US Citizens, and brothers and sisters of US Citizens. These categories, in order of preference, are as follows:

a. Family First Preference (F1) - Unmarried Sons and Daughters of US Citizens: The reason these individuals are not qualified under the immediate relative category is because they are over the age of 21 years. In order to be an immediate relative, each son or daughter must have met the legal definition of "child." i.e., he or she must be under the age of 21. When an individual reaches the age of 21 Congress determined that they were no longer dependent on their parents and could wait for a visa. This preference category is given 23,400 visas each year, plus any that are unused by the fourth preference.

b. Family Second Preference (F2) - Spouses, Unmarried Children, and Unmarried Sons and Daughters of Permanent Residents: This preference category is subdivided into two subgroups - the immediate family members (spouses and children) of permanent residents, and unmarried adult sons and daughters of permanent residents. The entire category is given 114,200 visas annually, plus any unused visas from the first preference category, with the vast majority going to the immediate family member subgroup. As with immediate relatives, the spouse of a permanent resident is granted permanent residence status on a "conditional" basis (for 2 years) if they have been married for less than 2 years at the time permanent residence is granted. But because of the wait times required it is rare that an F2 spouse will be given the conditional status. Also, as with the immediate relative spouse, if after two years the marriage ends or is found to have been a "sham," the residence will be terminated.

c. Family Third Preference (F3) - Married Sons and Daughters of US Citizens: Married children of the US Citizen do not qualify as immediate relatives for immigration purposes solely because they are married. Again, Congress determined that if they have married they are not dependent upon their parents and can wait for a visa. This group receives 23,400 visas each year, plus any visas unused by the first two preference categories. As always, each son or daughter must have, at some earlier point, met the definition of "child" for immigration law purposes.

d. Family Fourth Preference (F4) - Brothers and Sisters of US Citizens: The brothers and sisters of a US citizen qualify for immigration, but only if the petitioning citizen is 21 years of age or older. To qualify under this category, the sponsoring US citizen and his or her sibling must both meet (or have met) the definition of "child" in relation to the same parent.

e. Derivative Status: The immediate family members (i.e., unmarried children under the age of 21) of immigrants qualifying under each of these four preference categories are permitted to concurrently immigrate as well.

Documentation Required:

The documentation needed for a family-based petition for Permanent Residence is the same for Immediate Relatives and family preference applicants.

The following documents are required:

- INS Form I-130 (Petition for Alien Relative);

- Supporting Documentation that shows that the petitioner is a US citizen or lawful permanent resident, and a qualifying relationship between the petitioner and the beneficiary (the intending immigrant) exists;

- Form G-325A (Biographic Information Form) and two color photographs for both spouses, if the qualifying relationship is marital under either the immediate relative or second family preference category,

- The INS filing fee of $355.00; and

- Form G-28 (Notice of Appearance for the Attorney or Representative) if represented by counsel.

The I-130 package is filed with the USCIS National Benefits Center. The processing time for the I-130 will depend on which family based category the beneficiary falls into. If they are immediate relatives the processing time is currently 8-11 months. For the preference categories the processing times are 2 ½ to 7 ½ years depending on which preference category is involved.

Conclusion:

Family based immigration has many benefits for US citizens or permanent residents that want to be reunited with family, be it a spouse and children, a newly adopted child, or brothers and sisters. The closeness of the relationship will determine if the foreign national can be sponsored under the family based categories, and if they can how long it will take for them to get the immigrant visa.

Now let's go back to our dinner party and see who will be able to bring their relatives to the US, and how long it may take them.

Jose: Jose is here on an H-1B visa so he will not be able to sponsor any relatives for permanent residence. He cannot bring his little sister to the US to help care for his children.

Benjamin: Benjamin is a permanent resident so he is not able to sponsor his fiancé until they get married. Once they marry she will be the spouse of a permanent resident and will fall into the second preference category. According to the State Department Visa Bulletin it will take approximately 4 ½ years. Once Benjamin becomes a naturalized citizen his fiancé/wife would become an immediate relative and would not have to wait for a visa number.

Puna: Puna is still a permanent resident so cannot sponsor either his mother or his sister. However, once he is naturalized (remember he just filed his naturalization application) his mother will be an immediate relative (no wait) and his sister will be in the fourth preference category. Based on this month's visa bulletin Puna's sister will have about an eleven year wait.

Albert: Albert's situation is similar to Benjamin's, except that Albert is already married. He can file a Form I-130 for his wife right now. Like Benjamin, once the petition is filed Albert is looking at about 4 ½ years before his wife can join him.

Kenji: Kenji is a naturalized US citizen so his parents are immediate relatives and can come to the US relatively quickly, taking only the normal processing time. However, there is no category that his cousins would fit into so he is not able to sponsor them.


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