Family-based Immigration Overview
Family-based immigration is one of the common ways to immigrate to the United States. It allows U.S. citizens and lawful permanent residents (“LPR” or “green card holder”) to sponsor their family member for a green card and reunite in the United States.
There are two types of family-based immigration visas:
Immediate relative visas, which has no limit on the number of visas available each year. These visas are for close relatives of U.S. citizens, such as spouses, unmarried children under the age of 21, and parents (if the U.S. citizen is 21 years of age or older).
Family preference visas, which has a limit on the number of visas available each year. These visas are for more distant relatives of U.S. citizens and spouses and unmarried children of legal permanent residents.
Family preference visas are categorized as follows and each category is allotted a certain number of visas from the total number of visas available each year.
First preference (F1): unmarried sons and daughters (21 years of age or older) of U.S. citizens.
Second: spouses and children, and unmarried sons and daughters of permanent residents.
(F2A) spouses and children of permanent residents.
(F2B) unmarried sons and daughters (21 years of age or older) of permanent residents.
Third preference (F3): married sons and daughters of U.S. citizens.
Fourth preference (F4): brothers and sisters of U.S. citizens (21 years of age or older).
Generally speaking, family-based immigration is a two-step process. The first step involves a U.S. citizen or LPR filing a family-based immigration petition with the United States Citizenship and Immigration Services (“USCIS”). The second step involves the foreign national relative filing an application to seek a green card or to process their visa if not in the United States. How these steps work depend on factors such as whether an immigrant visa is available, whether the family member is aboard or in the United States, etc.
Immigrant visas are immediately available to immediate family members of U.S. citizens. In circumstances where the spouse, child, or parent of a U.S. citizen is living abroad, the U.S. citizen petitioner may file his or her I-130 petition first. And after the petition is approved, the family member may apply for an immigrant visa at a U.S. consulate or embassy abroad. When a foreign national spouse obtains his or her green card based on a marriage to a U.S. citizen spouse and the marriage was less than two years when the permanent resident status was granted, the green card can be a conditional green card valid for 2 years. In this circumstance, a I-751, Petition to Remove Conditions on Residence, must be filed before the expiration date of the green card.
The wait time for an immigrant visa varies depending on the visa categories and the foreign national relative’s place in line. The priority date - the place in line - is determined by the date that USCIS accepts the I-130 petition for processing. A visa bulletin is published by the Department of State, monthly, to provide information about visa availability and other immigrant visa related information.
When your priority date becomes current, you may proceed to step two. In other words, when you have reached the front of the line, an immigration visa is available to you and you may proceed to step two - apply to adjust status in the United States or seek an immigrant visa abroad. Usually, a couple months before the final action date or when the date of filing is current, you will receive an email from the National Visa Center (“NVC”) to start visa processing. It is important to reach out to the NVC or USCIS if your priority date is current or passed, because the NVC may cancel the visa if they reach out by mail or electronically and you did not respond within one year.
Working on your own immigration petition can be a stressful and time-consuming process. If you need help, please contact us.
A Few Frequently Asked Questions about Family-based Immigrant Petition:
What about my stepchild?
A U.S. citizen or LPR stepparent may sponsor their stepchild for green card if the U.S. citizen or LPR stepparent married the child’s birth parent before the child turns 18 years old. This could lead to a difference between whether the stepchild needs to wait for an immigrant visa or which family preference he or she is in. And therefore, the immigration timeline may be different.
Am I allowed to immigrate to the United States if I am or was a member of or affiliated with the Communist or another totalitarian party?
Immigrants who are or have been a member of or affiliated with the Communist or any other totalitarian party are inadmissible under the law. However, there are exceptions for certain circumstances such as, involuntary membership, past membership, and humanitarian purposes for close family members. We highly recommend you to seek legal advice regarding your individual circumstances and, when applicable, documentations that you may collect to support your request for exception.
After I become a lawful permanent resident, when can I apply for U.S. citizenship?
If you obtained your green card through your U.S. citizen spouse and you remain married to your spouse, you may typically apply for naturalization after three years of being a LPR, granted that other requirements for naturalization are met. If you obtained your green card through other ways, or you have divorced or separated from your U.S. citizen spouse, or your U.S. citizen spouse has died, you may apply for naturalization after five years of being an LPR. There are other factors that must be assessed prior to filing an application for naturalization such as, extensive international travels, arrests or pending charges, other deferral programs, etc. We strongly recommend that you consult with an experienced attorney before proceeding with the decision to naturalize.
A Few Things to Know About Being a Lawful Permanent Resident:
Residence in the United States. As a lawful permanent resident, you make the United States your primary home. If you live in the United States for six months or more in a year, the USCIS is likely to assume that your residence is in the United States. However, if you must be out of the country for six months or more, you may consider applying for a reentry permit before you leave. And you may want to keep a record of your residence in the United States in the event that you need to prove it. Documentations to show your residence in the United States may include your filing of income tax returns in the U.S. as a resident, bank statements, utility bills, lease, insurance, and work records, etc.
Males between 18 and 25 years old to register with the Selective Service System. With few exceptions, all U.S. citizen and immigrant males between 18 and 25 years old are required to register with the U.S. Selective Service System within 30 days of their 18th birthday or within 30 days after arriving in the United States. If you are a male between 18 and 25 years old when you become a permanent resident, you may want to do some research to find out if you are required to register with the Selective Service System. And if you are required to, you may want to do so promptly. Failure to register may lead to penalties and/or ineligibilities for some opportunities in the future, such as federal employment, some state employment, some state-funded financial aid for college education, and job training benefits.
Change of address with the USCIS. Non-citizens are required by law to notify the USCIS of each change of address within 10 days of moving. You may report your change of address through your USCIS online account or by filing a Form AR-11, Alien’s Change of Address Card, with the USCIS.
This article provides an overview of family-based immigration, answers some frequently asked questions about family-based immigration, and discusses a few things to know about being a permanent resident. In our following articles we will discuss different aspects of family-based immigration petitions, such as public charge, affidavit of support, etc. Please stay tuned.
Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.
This article is also available in Traditional Chinese and Simplified Chinese.
Disclaimer: The information on this website is provided for general informational purposes only and is subject to change without notice. It does not, and is not intended to, constitute legal advice. Accessing or using information on this website does not create an attorney-client relationship between you and the Firm, and it is not intended to do so.
