Family Based Immigration

1. Introduction to Categories and Preferences of Family-Based Immigration
Foreign individuals can obtain immigrant visas (“green card”) through qualifying family members who are citizens or lawful permanent residents of the United States. There are two groups of family-based visas available: immediate relatives and family preference.

  • Immediate Relatives Immigrant Visas are available for:
    • the spouse of a U.S. Citizen
    • children of U.S. Citizens who are unmarried and under 21 years of age
    • the parents of a U.S. Citizen who is at least 21 years old

    The visas for immediate relatives of a citizen are not subject to any numerical limitation or quota. This means that the numbers of visas are unlimited and always available.

  • Family Preference Immigrant Visas. These visas are available for other close family members of a U.S. Citizen and also for family members of Permanent Residents. However, the numbers of visas available each year are subject to a numerical limitation, so visas are not always available. The qualifying family members are divided into “Family Preferences Categories”.
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2. Family Preferences Subject to Visa Availability Limitation
Family preferences subject to visa availability limitation are:

  • First Preference (F1): the unmarried children over 21 years of age of U.S. Citizens, and their minor children, if any.
  • Second Preference (F2): spouses, minor children, and unmarried children over 21 years of age of permanent residents of the United States.
  • Third Preference (F3): married sons and daughters of U.S. Citizens, and their spouses and minor children.
  • Fourth Preference (F4): Brothers and sisters of U.S. Citizens and their spouses and minor children (U.S. Citizen must be at least 21 years old)
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3. “Priority Date” and “Visa Bulletin”
Family Preference Categories listed above are limited to 226,000 visas per year. If the numbers of qualified applicants exceed the numbers of visas available for a given year, a waiting list forms. The visas are distributed according to the preference category and the applicant’s “Priority Date”. The priority date is the date that the petition is filed with the Immigration Service and it is used to determine the alien’s place in line in the waiting list. Once the priority date becomes current, the alien will be eligible to apply for an immigrant visa (If the alien is in the United States legally, he or she will be able to submit the application for the green card or if the alien is in a foreign country then the U.S. National Visa Center will begin processing documents for the interview preparation at the U.S. Consulate).

The U.S. Department of State publishes a monthly Visa Bulletin where they report the availability of the visas for each preference category. If your priority date is earlier that the date listed on the bulletin for your preference category and country, then a visa is available and you will be able to apply for a green card. In certain categories, such as the brothers and sisters of U.S. Citizens, there are many qualifying petitions compared to the visas available, so there is a longer waiting period before the priority date is current compared with other categories.

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4. Citizen’s Application for Spouse, Parents, and Unmarried Children Under 21
Immediate relatives (spouse, unmarried and minor children, and parents) of a U.S. Citizen are not subject to a quota and visas are available immediately. However, the person still has to wait for the Immigration Service or the Visa Center to process the application. The waiting-time for the processing of the application will depend on the number of cases that Immigration Services or the Visa Center has and their processing speed.

A person who is physically present in the United States after entering the U.S. legally can immediately file an application for the green card, along with the sponsored family-based application. He or she can also apply for employment authorization and for a reentry permit. Prior to obtaining the green card, the U.S. Citizen and the foreign relative will have to attend a joint interview at the Immigration Service. The waiting time for this process ranges from six months to two years.

If the person is not in the United States, the qualifying relative will have to file the family-based application first. Once it is approved by the Immigration Services, it is sent to the National Visa Center. The visa center will immediately begin processing the required documents and once they process all the documents, they will schedule an interview appointment at the U.S. embassy or consulate.

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5. Special Restriction to Citizen’s Spouse – 2-Year Temporary Residence
In order to prevent foreigners from obtaining permanent residency through sham marriages, immigration laws have special provisions regarding spouse-based applications. According to the special provisions, if the marriage is less than two years old when the foreign spouse is granted resident status, he or she will only obtain a temporary conditional green card.

To remove the conditions and obtain a formal green card the person will have to wait two years together with the citizen spouse. After two years the alien spouse and the citizen spouse must file a Petition to Remove the Conditions of Residence together to prove that the marriage is still valid. The earliest date to file the petition is within the 90-day period before the expiration date on the conditional resident card. Failure to do so may result in the termination of the conditional residence.

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6. Application Procedure if the Immediate Relative of US Citizen is in the US
When the immediate relative of a U.S. citizen is physically present in the U.S. after being lawfully admitted to the U.S., he or she can apply for a green card while inside the U.S. The citizen relative will have to file a petition for alien relative and the foreign relative will have to file an application to register permanent residence. Both applications can be filed at the same time. Additionally, the foreign relative can file an application for work authorization and travel document.

After the alien relative petition and green card application are filed, the Immigration Services will issue a receipt notice. Shortly after, they will schedule an appointment to get the foreign relative’s fingerprints and then they will schedule the appointment for an interview to determine the alien relative’s eligibility to obtain a green card.

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7. Application if the Petitioned Relative is Outside of the US
When the foreign relative is outside the U.S., he or she may become a permanent resident through consular processing. First, the citizen or resident relative must file a Petition for Alien Relative with the United States Citizenship and Immigration Services (USCIS). After USCIS approves the petition for alien relative, it is sent to the National Visa Center, where they will begin processing the case. The relative will have to pay the necessary fees and submit the application forms, Affidavit of Support and evidentiary documents for the visa application. Once the process with the visa center is completed, they will schedule an appointment for the interview. The visa center will send the documents to the U.S. consulate where the applicant will be interviewed.

In the case of immediate relatives, there is no waiting period for the processing of the visa application. However, for family preference immigrant visa applications, the relatives will have to wait for their priority dates to become current. Once it is current, the visa center will send all the forms and evidentiary documents to the U.S. consulate and an interview will be scheduled.

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8. Affidavit of Support Requirement
As a requirement for the green card application, the citizen/resident relative or any other sponsor will have to submit an Affidavit of Support for the immigrant. The individual who signs the affidavit guarantees that he or she has enough income to maintain the immigrant and the rest of the sponsor’s household at 125 percent of the federal poverty guidelines. If the sponsor’s income and/or assets are not enough to provide such a guarantee, the person can find a co-guarantor or joint sponsor. The joint sponsor will also be legally responsible for the immigrant’s financial support. The sponsor and joint sponsor must be able to provide evidence such as recent income tax reports and letters from employers to prove their financial means.
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9. K-3 Visa for Spouse, and K-4 Visa for Minor Children of US Citizen
The foreign spouse of a U.S. Citizen who is outside of the U.S. may be admitted and authorized to work in the United States as a nonimmigrant with a K-3 visa while awaiting a decision on the Petition for Alien Relative (Form I-130). Unmarried and minor children of the foreign spouse can also be admitted with a K-4 visa.

To obtain a K-3 visa, the citizen spouse must file two petitions with USCIS on behalf of the foreign spouse. First, a Petition for Alien Relative must be filed. After filing, USCIS will issue a Receipt Notice. The citizen spouse must then file a second petition, on behalf of the foreign spouse. The Receipt Notice for the first petition should be included with this second petition. Children seeking K-4 status should be listed in the petition for alien spouse. When the petition for alien spouse is approved it is forwarded to the visa center for consular processing. After that, the foreign spouse and his or her children will have to attend an interview at the U.S. Consulate.

Once admitted to the U.S., the foreign spouse can apply for a green card at any time. The foreign spouse’s children can also apply for a green card if a petition on the children’s behalf was filed by the citizen spouse. If a petition has not been filed, it can be filed concurrently with the green card application. The K-3 beneficiary will be able to work and travel.

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10. Self-Petition by Abused Family Member – Violence Against Women Act (VAWA)
Before the U.S. Congress passed the Violence Against Women Act (“VAWA”), sometimes the foreign family members have to rely on the abusive relative to file a petition on their behalf in order to get the green card. Also, foreign spouses who were given a conditional green card had to stay and endure a marriage with an abusive citizen spouse for years to receive a permanent green card.

However, under VAWA, the spouses and children of citizens or U.S. permanent residents may self-petition to obtain a green card. Parents of a U.S. Citizen subject to abuse can also apply. By self-petitioning, the foreign relative will not be subject to the control of the abusive US citizen. He or she can submit their own application without the abuser’s knowledge or consent. In the case of abused children, the child can self-petition or the spouse of a citizen or resident whose child has been abused can file a self-petition on the basis that the child has been abused, and the petition will benefit both.

To apply, the victim must prove that he or she has or had a qualifying relationship to the abuser, that he or she was subject to battery or extreme cruelty by the abuser, that he or she resides or resided with the abuser and that he or she has a good moral character. The victim can file a self-petitioning form (no sponsor needed). If approved, the victim can apply for a green card. Immediate relatives (parents, unmarried and minor children, and spouses of U.S. citizens) can apply for the green card concurrently with the VAWA self-petition. Family preference individuals, such as spouses and children of permanent residents, can apply for a green card when their priority date becomes current.

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11. Document Preparation
For family-based immigration the most important evidence is the one that shows the relationship between the intending immigrant and the citizen or permanent resident. For example, in a marriage petition the most important document will be the marriage certificate. Other supporting documents are: bank statements, lease contract, photos of marriage and relationship, birth certificates of the couple’s children and divorce documents (if previously married), among others. To show parent-child relationship, birth certificates will be needed. Photos, medical records and adoption documents can also be submitted. Besides from evidence showing relationship, evidence of identity and immigration status will be needed. The evidence will be submitted with the necessary forms, required passport-style photographs, Affidavit(s) of Support, Filing Fees and Medical Examination Forms for the intending immigrant (to be completed by a physician).
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12. Why Lin & Valdez LLP
Attorneys in Lin & Valdez have years of knowledge, skills and experience in family-based immigration processes. We have handled thousands of family immigration cases, and helped thousands of family members of US citizen or permanent resident obtain green cards.

Our staff work in family-based applications in a daily basis and we make sure that all the necessary documents are submitted. We make sure that the application steps are followed correctly and accurately to ensure a positive and quick result for the application. We know how important it is to maintain family unity and thus we always aim to provide our clients best and most timely service.

We have helped reunite countless families from all around the world. So, if you have any questions about family-based immigration or alternatives to bring your loved ones to the United States, please contact us.

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