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FAMILY-BASED IMMIGRATION

United States citizens and permanent residents (Green Card holders) can assist their qualifying relatives in petitioning for citizenship and permanent residency in the United States. In addition, qualifying widows can petition for themselves based on the status of their deceased spouse within 2 years of the death of the spouse.

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TERMINOLOGY

To be clear, people use a few terms to describe permanent resident status. A permanent resident is someone who has a valid Green Card and has immigrated to the United States, is a lawful permanent resident (LPR), has adjusted status to permanent resident, or received an immigrant visa. All these terms mean the same thing – a person who has permanent resident status. A permanent resident may:

  • Live and work permanently in the United States,

  • Travel in and out of the United States (with some restrictions),

  • Help other family members (spouse and unmarried sons and daughters) immigrate by filing a petition for them, and

  • Apply for U.S. citizenship, after some years as a permanent resident.

WHO IS INCLUDED IN FAMILY IMMIGRATION PETITIONS

  • Under current law, “immediate relatives” of a United States citizen may immigrate to the United States without any restrictions on the number of immediate relatives allowed into the United States. “Immediate relatives” include the parents, spouses and unmarried children (under 21 years old). While no quotas apply to this category, there can be processing delays in obtaining LPR status for these “immediate relatives.”  

  • Other family members of United States citizens or LPRs are divided into preference categories. Each preference category allows admission into the United States only a limited number of immigrants per year.  Family members in these categories must wait for an immigrant visa number to become available according to the following preferences:

First Preference: Unmarried, adult sons and daughters (at least 21 years old) of United States citizens. 

Second Preference: Spouses of Green Card holders, and the unmarried sons and daughters (regardless of age) of   Green Card holders and their children.

Third Preference: Married sons and daughters of United States citizens, their spouses and their minor children.

Fourth Preference: Brothers and sisters of adult (21 years or older) of United States citizens, their spouses and their minor children.

  • For each of these preference categories, there generally are long waiting periods before the sponsored individual may become a LPR. Waiting periods are set for each preference category according to country of birth and are published by the Department of State monthly in their publicly viewable visa bulletin. Receiving a place in line does not provide any legal status or right to remain in the United States, nor does it allow for employment authorization.  In most instances, the family relationship must be maintained throughout the waiting period for LPR status.

OTHER CONSIDERATIONS

  • Family-based immigration visa petitions are usually initiated when the sponsoring relative files an immigrant visa petition, also known as Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center. Different filing processes for the I-130 are involved if you are pursuing “Consular Processing,” which involves the process being handled by a U.S. Consular Office abroad, rather than at USCIS in the US.  In Consular Processing, the interviews, and other activity are done abroad, the processes and fees are different and there is no right to an appeal. 

  • In considering consular processing, note that persons who are in the US unlawfully for over 180 days to one year who voluntarily leave the US are subject to a three-year bar from being legally admissible for reentry into the US.  Similarly, persons who are in the US unlawfully who voluntarily leave the US risk being subject to a ten-year bar.

  • The date of receipt of the I-130 petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain LPR status in the United States. 

  • It is important to note that filing petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas. It may also bring to the attention of the immigration authorities an individual in the United States without authorization. 

  • Additionally, an individual must meet the criteria to be “admissible” to the US or be eligible for a waiver of inadmissibility to be eligible to obtain LPR status. Thus, an individual’s admissibility should be thoroughly assessed before a petition is filed. ​

The foregoing is general information, not legal advice, and additional issues are involved in pursuing most family-based petitions.  Rothfelder Stern Immigration Law Firm in Trenton New Jersey is available to advise and assist you in pursuing family-based immigration visas and related matters.