Family Immigration

Family-based immigration is the backbone of our immigration system. It allows for families to stay together and live in the U.S. One of the most common avenues for a foreign national to obtain legal permanent residence in the United States is through the family-based immigration process.

As a spouse, parent, or child of a U.S. citizen or legal permanent resident, an individual may be eligible for permanent resident status through an adjustment of status application or alternatively, an immigrant visa application if they meet specific criteria.

This involves the petitioner, who is a U.S. citizen or permanent resident. It also involves the beneficiary, who is the foreign family member who wants to obtain a visa.

Immediate relatives include spouses of U.S. citizens, unmarried children of U.S. citizens under the age of 21; orphans adopted (or to be adopted) by a U.S. citizen; and parents of U.S. citizens who are at least 21 years old. For purposes of family-based immigration, simply living together or being in a common-law marriage is not considered a “spouse.” Same-sex marriages are considered to be valid marriages for immigration purposes. Family preference categories include:

Unmarried, adult children aged 21 or over of U.S. citizens
Spouses and unmarried children aged 21 or under of permanent residents
Unmarried, adult children of permanent residents
Married children of U.S. citizens
Siblings of adult U.S. citizens

Who is eligible to file for family-based visas?

All family-based immigration visa applications fall into one of two categories: immediate relatives, or family preference.

These categories help define the family relationship between the sponsor and the beneficiary. Often, they also dictate the priority of the case and the length of time it will take. While the number of immediate relative visas is not limited, the number of preference category visas is limited every year.

If the sponsor was originally a permanent resident and then became a U.S. citizen since the filing of the petition, it is possible to upgrade the application.

In addition to the above, U.S. citizens may also petition to sponsor a foreign fiancé to come to the U.S. for the purpose of marriage. This process begins by filing Form 129F, Petition for Alien Fiancé, and it requires the securing of a non-immigrant K-1 visa. While there is no minimum age to file a petition on behalf of a fiancé or spouse, the Affidavit of Support requires the minimum age of 18 and residency in the U.S. An experienced fiancé visa lawyer can be invaluable in this process.

What does the family-based immigration process look like?

The rules and process of family-based immigration can be complex and confusing for a layperson. The process generally begins with the petitioner filing a Form I-130, Petition for Alien Relative, with the USCIS. When that form is accepted, a priority date is set for the application, essentially determining your place in line for approval.

Family members who are residing in their home countries will often need USCIS approval of their application before they may obtain a visa to enter the U.S. Those who are already in the U.S. in a lawful nonimmigrant status must apply for a change of status for permanent residency.

The sponsor will also need to file an Affidavit of Support, which is used to show they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. Whether you already reside in the U.S. or are awaiting your visa abroad, you will need to undergo an interview with the federal government.

In the case of a spouse visa, or marriage-based petition, if the sponsor and beneficiary have been married for less than two years, then the immigrant spouse’s permanent residency will be considered “conditional.” The spouses must apply together to USCIS to remove the conditional status within the ninety days before the two-year anniversary of the immigrant spouse’s entry into the U.S.

The process can be quite lengthy, sometimes taking several years. This is often because demand for family preference immigrant visas is often high, exceeding the number of visas available, and creating a backlog.

What fees are involved?

According to the State Department, fees are charged for the filing of Petitions for Alien Relatives, as well as processing an immigrant visa application. In addition, there are fees for the required medical examination, vaccinations, translations, and obtaining essential documents. The USCIS website provides a full list of filing fees.

What might complicate a family immigration case?

In addition to the complexity of the process, many family immigration cases are fraught with issues that can complicate matters.

It may be difficult to prove a familial relationship between the sponsor and the beneficiary, necessitating additional proof and information
There may be eligibility issues, such as a member of the family not being considered a “preference relative”
There may be inadmissibility issues, such as prior criminal convictions
You may need to provide significant supplemental documentation, such as photographs, originals of vital documents, or affidavits
You might face unexpected questions or requests for information during your visa interview, such as regarding your relationship in the case of a spouse visa
You might need to overcome a prior rejection or denial of your immigrant visa application

In the case of any of these issues, as well as many others, it may be increasingly difficult and confusing to navigate the petition process on your own. Accounting for legal and technical issues, it is in the best interests of many petitioners to retain the services of an immigration attorney.

Family-Based Immigration Documents

A spouse of a U.S. citizen who is the beneficiary of an I-130 petition filed by their U.S. citizen spouse and who remains abroad may obtain a K-3 visa to allow their spouse to come to the United States while they are awaiting a decision on the I-130 petition. The K-3 visa was intended to reduce the amount of time that a U.S. citizen and their spouse would spend apart during the I-130 process. However, USCIS now generally processes the I-130 petition in less time than the K-3, thereby reducing the need for the K-3 visa overall.

The K-1 Fiancé visa allows U.S. citizens to bring their foreign fiancé to the United States in order to get married. The U.S. citizen and fiancé must marry within 90 days of the fiancé entering as a K-1 non-immigrant. Once married, the U.S. citizen may petition for the fiancé’s permanent resident status.

When you are experiencing difficulties seeking lawful presence in the U.S., you can appeal for leniency. Any potential immigrant, and some nonimmigrants, who have been denied entry or an adjustment of status because of specific inadmissibility reasons can apply for an I-601 waiver of inadmissibility. In other cases, individuals who have eligible pending visa cases but have already been living in the United States without lawful presence may be afraid to leave the U.S. for their visa interview. If they qualify, these individuals can apply for an I-601A provisional unlawful presence waiver before leaving the U.S. and avoid being banned from entering the U.S. under USCIS’s three- or 10-year ban on re-entry.

United States citizens or permanent residents who wish for their eligible relatives to immigrate to the United States as permanent residents begin the first step of the permanent residence process by filing an I-130 petition. The I-130 petition can be filed for eligible relatives inside the United States or those residing outside the United States. In order to complete the permanent residence process, beneficiaries must either apply for adjustment of status inside the United States or an immigrant visa at a U.S. consulate abroad.

Marriage-based applicants for permanent resident status who were married to their spouse for less than two years at the time their permanent resident status is approved are granted permanent resident status on a conditional basis. Conditional Permanent Residents must then apply to remove the conditions on their permanent resident status in the 90 day period prior to expiration. USCIS seeks to confirm the continuation and bonafide nature of the marriage through the removal of conditions process and extensive documentation is required for the application.

Adjustment of Status, also known as “the green card process”, allows an applicant lawfully admitted to the United States to change their status to permanent resident status. Applicants most commonly adjust their status through a qualifying family member’s sponsorship, employment-based sponsorship, or a self-petition. While an application for adjustment of status is pending, an applicant can lawfully remain in the United States and may also be eligible for employment and travel authorization.

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Family Immigration

Who is eligible to file for family-based visas?

What does the family-based immigration process look like?

What fees are involved?

What might complicate a family immigration case?

Family-Based Immigration Documents

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