June 16,2022
Payman Habib- Attorney at Law
Uncategorized
Family based Immigration basics
Do you have a U.S. Citizen or Legal Permanent Resident “Green Card” family member and want to explore if they are able to provide you with immigration benefits? Schedule a consultation with one of our experienced attorneys to explore whether you qualify for this powerful immigration tool.
I. Generally
Having a family member with legal status in the United States can often lead to benefits for their noncitizen family members. There are different rules depending on the type of relationship between the persons, the age of the persons, and the country of nationality.
For example, if a family member is a United States Citizen, or Legal Permanent Resident (“Green Card”) we can explore whether that family member can provide the noncitizen with the benefits of legal status. The noncitizen must meet certain requirements as a qualifying family member.
Generally, only certain types of relationships between family members qualify one to petition for family-based immigration benefits. Depending on the type of relationship between the person with the United States legal status (known as the “Petitioner”) and the noncitizen trying to obtain status (known as the “Beneficiary”), there are different rules and different processing times at play to receive a visa. For example, it may be possible for a U.S. Citizen to petition their spouse, but not petition their cousin or grandparent. This is because only certain types of relationships qualify.
II. Visa Bulletin
Every month the United States government, Department of State, updates their website with processing times for the different types of family relationships. The reason there are different processing times is because there are only a limited number of visas that the government can provide each year by law. Think of it as being placed at the back of the line when you apply for your family-based visa and having to wait till your number is called before you can benefit. Different types of family relationships have faster lines to get a visa and different countries may have longer processing times. The different categories of family relationships are listed below, please note the visa bulletin does not apply to “immediate relatives”, as these are special relationships that have certain advantages and do not have the same statutory restrictions on the number of visas available per year.
Please refer to the Visa Bulletin here for updated processing times, this is generally updated monthly: Department of State Visa Bulletin
III. Different qualifying family relationships
1. Immediate relatives: If the noncitizen (the person you are trying to give the benefit to) is in one of the following categories, they would be considered an “immediate relative”:
A) A spouse (for example, a husband or wife) of a United States Citizen, or
B) An unmarried child under 21 years of age of the United States Citizen, or
C) A parent of a United States Citizen that is at least 21 years old (for example, your child was born in the United States, is a U.S. Citizen, and is now 21 years old.
This category is not subject to the visa bulletin and generally has different rules than the other preference categories below. Note, this category is generally the most powerful for the noncitizen but may require separate petitions for “derivatives” of the noncitizen.
2. First preference (F1): Noncitizen is the unmarried son or daughter (at least 21 years old) of a United States Citizen.
3. Second preference (F2): Noncitizen is the spouse or unmarried son or daughter (any age) of a Legal Permanent Resident. Note the second preference category can be further broke down into (F2A) for spouses and children under 21 years of age, and (F2B) for unmarried sons and daughters (21 years of age and older) of legal permanent residents “Green card” holders.
4. Third preference (F3): Noncitizen is the married son or daughter (any age) of a United States Citizen.
5. Fourth Preference (F4): Noncitizen is the brother or sister of an adult United States Citizen. A sibling relationship exists for immigration purposes if each person has been the “child” of the same parent.
Notes on stepchildren: A U.S. citizen or Legal Permanent Resident stepparent may petition for their stepchild to immigrate them or adjust their status if the stepparent married the child’s birth parent before the child’s 18th birthday. You are not required to adopt your stepchild to petition for them.
IV. Final thoughts
Getting started with the process: Generally, the first step to start this process is to file the Form I-130 with USCIS. Depending on the complexity of the noncitizens immigration history, previous entries into the United States, any time spent in the United States “without status”, and various other factors, the family-based petition may be straight forward or very complicated. Furthermore, whether the noncitizen is currently inside the United States or outside the country can change the next steps of the process dramatically.