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Immigration Through Family and Spouse – Hoops to go through

Law Office of Charlotte C. Lin Family Based Immigration INFOGRAPHICS

U.S. citizens and permanent residents helping their family members immigrate to the U.S. has to, generally, go through two hoops. The first part is to get a family visa petition approved. This is the “Petition for Alien Relative”. Two things that needs to be proven are 1) that the U.S. citizen or permanent resident actually has citizenship or residency and 2) the citizen/resident has a family relationship to the family member he/she is applying for. People applying for their spouses would fall under this requirement as well. (See generally 8 CFR § Sec. 204.2 Petitions for relatives, widows and widowers, and abused spouses and children.)

Hoop #2 is the process of becoming a permanent resident, or commonly referred to as getting a green card. The time period between hoop 1 and 2 will depend on the family relationship. Note that the applicant must also not be inadmissible on some ground (or must get a waiver, if able). Note that each of the 2 parts has its own filing fees (see USCIS for latest fee schedule).

Immediate relatives, as it’s name implies, can apply to become permanent residents immediately (when the visa is approved, or if eligible for adjustment of status).

Who are immediate relatives? They are the spouse of a U.S. citizen; child of a U.S. citizen; and parent of a U.S. citizen (if the citizen is at least 21 years old). Note that these are the relatives of a U.S. citizen. Permanent residents will not be able to apply for their relatives in this “immediate relatives” category. Also, a “child” under this category must be unmarried and under 21 years of age and must have a  relationship with the parent applying for them. Special rules apply to stepchildren and adopted children. Also, children born out of wedlock might have to pass some extra hoops as well. For spousal petitions, the marriage must be legally valid (recognized as a legal marriage where you were married), and it must be bona fide (real relationship).

If you are applying for a spouse, and you have been married for less than 2 years, upon approval, your spouse will receive conditional permanent residency for 2 years. At the end of that 2 year period, together you must file a joint petition to remove the conditional status. What I do for my clients after helping them with obtaining residency status is advise what to save and prepare in anticipation of the end of the 2 year deadline. I also send a courtesy reminder at the end of the 2 year period.

So what about if you aren’t an immediate relative? Other relatives must wait under the preference system. There are many, many caveats under this category, but I will discuss this section generally. First preference are for the U.S. citizen’s age 21 or older unmarried children (F1). Second Preference are for permanent resident’s spouse or child (F2a); and for permanent resident’s age 21 or older unmarried children (F2b). Third preference is U.S. citizen’s married children (regardless of age) (F3). Fourth preference is the U.S. citizen’s sibling (the U.S. citizen must be age 21 or older) (F4).

Remember, being qualified under the preference system doesn’t mean one can immigrate immediately. How long one has to wait under the preference system depends on the country they are born (generally it is dependent on the country of birth). There is a certain number of people born in each country that can immigrate to the U.S. through the preference system. Looking at the current Visa Bulletin, an immigration attorney can only give a rough estimate of an available date based on the country and preference. China, India, Mexico, and Philippines have their own separate listings (although looking at May 2014, there isn’t necessarily a different priority date for China and India). All other countries are under “all chargeability areas except those listed.” To be able to apply for a green card, your priority date must be before the date listed under the preference category and country. The reason why I bolded and underlined rough estimate  is because if you see the Visa Bulletin, there is really no “future” priority dates. One can still make a rough estimate depending on the changes in priority dates from previous years, but it is still an estimate (depending on the people applying under each preference that month and the country of chargeability).

Family-SponsoredAll Chargeability Areas Except Those ListedCHINA-mainland bornINDIAMEXICOPHILIPPINES
 *May 2014 Visa Bulletin

About Charlotte Lin

Charlotte is a trusted lawyer by day, and legal ninja by night. In her spare time she enjoys slashing tickets with nunchucks.