Family Based Immigration
What is Family-Based Immigration?
One of the primary goals of immigration laws in the United States is to reunify families. A United States citizen can petition for their parents, children, husbands, wives, brothers, or sisters under family-based immigration, but not more distant relatives like aunts, uncles, grandparents, cousins, nieces, nephews, etc. You are allowed to petition for your children, even if those children are married. In this process, there are petitioners and beneficiaries. As you might imagine, the petitioners are those who are U.S. citizens or lawful permanent residents, while the beneficiaries are those who will benefit from obtaining a green card.
A legal permanent resident is only able to petition for a husband, wife, or unmarried children. The difference in status between being a United States citizen or a legal permanent resident is significant when dealing with family-based immigration and can make a difference in the amount of time your relative will have to wait to emigrate to the United States.
If you are a U.S. citizen, you are also allowed to petition for your fiancé’ or spouse to come to the United States on a non-immigrant visa known as the K-1 visa. A non-immigrant visa does not grant permanent immigration status, rather grants temporary immigration status. If you are a U.S. citizen, and you want your spouse to come to the United States, you would use a K-3 visa, rather than a K-1 visa.
The K-3 visa allows your spouse—a foreign national—to petition for permanent residence status, awaiting approval of that petition while living in the U.S. with you, rather than abroad. K-1 visas for a fiancé can be harder to obtain than a K-3 visa for a spouse. It is especially hard to obtain a K-1 visa from Vietnam, largely due to a significant number of cases of immigration fraud.
This type of fraud has U.S. citizens being paid to marry strangers, so those strangers can obtain U.S. immigration benefits. Unfortunately, this has made immigration officials suspicious of K-1 visa applications. U.S. immigration authorities are always likely to be somewhat suspicious of even family relationships, concerned the relationship is real. Because of this, there should be sufficient proof of the family relationship no matter what type of family-based petition you intend to file.
Family Relationship Preferences
Under the INA there are two categories of relatives: immediate relatives and preference relatives. Immediate relatives are spouses of U.S. citizens, unmarried children younger than 21, parents (if the petitioner is at least 21), and, in specific instances, spouses of deceased United States citizens. Preference immigrants are:
- Unmarried sons and daughters over the age of 21 are first preference immigrants.
- Children or spouses of immigrants lawfully admitted for permanent residence or unmarried sons or daughters of immigrants lawfully admitted for permanent residence are second preference.
- Married sons and daughters of United States citizens are third preference.
- Sisters or brothers of United States citizens, if the U.S. citizen is at least 21 years old.
While there is no limit on the number of immediate relatives permitted to enter the U.S., there are limits for those entering through a preference category. Every month a Visa Bulletin is published by the U.S. Dept. of State. This bulletin establishes priority dates for admission in each preference category for the month (the date an immigration petition is received by the U.S. Citizenship and Immigration Services). In other words, each approved immigrant visa petition is placed in order by using the date the visa was filed—the priority date.
The Process for Family-Based Immigration
The petitioner (a lawful permanent resident, or a U.S. citizen) will make a request to the U.S. government, asking that a specific family member be allowed to immigrate to the United States. Form I-130, Petition for Alien Relative will be filed with the USCIS. This form will establish that there is a qualifying family relationship.
Once the I-130 petition is approved, the immigrant family member is allowed to apply for a green card—either through adjustment of status, or through consular processing. Consular processing entails applying for a green card through the consular office in a foreign country or the U.S. embassy in a foreign country. This is the more common way to apply for a green card unless the immigrant is already considered a temporary visitor and is in the United States.
Examples of a temporary visitor would be a student or tourist. If that is the case, that family member might be able to adjust his or her status from temporary to permanent resident (holder of a green card). Adjustment of status is only available in relatively rare circumstances. It generally takes from 5-9 months to process an I-130 form for immediate relatives. The reason it can take this long is that there is no limit on the number of visas for immediate relatives.
Because many I-130 forms are rejected or denied, it is extremely important to have a knowledgeable immigration attorney assisting you in this process. When you consider that, according to USCIS, out of roughly 250,000 I-130 petitions filed each year, almost 20,000 will be rejected, and another 16,000 will be denied, you can see how important it is to have a strong advocate in your corner who understands the process.
Marriage for Family-Based Immigration
If you obtained your permanent resident status through a U.S. citizen or permanent resident spouse, and you have not been married for at least two years when that status was obtained, then your permanent residence status is conditional for two years. Within ninety days prior to two years from the anniversary of conditional permanent residence, you and your spouse must file a joint petition to remove that conditional status.
If you divorce prior to this date (and you are the conditional permanent resident), you can file for a waiver of this joint filing requirement—but only if the divorce is final. The waiver of joint filing requirement cannot be used if you are in the middle of a divorce. Immigration officials also allow abused spouses to file for a waiver of the joint filing requirement.
Obtaining U.S. Citizenship
If a person obtained his or her permanent resident status via marriage to a United States citizen, that person is allowed to apply for citizenship three years after the date on which permanent residence was initially granted. You are allowed to file for U.S. citizenship up to 90 days before your three-year permanent resident anniversary. You will be required to interview, usually 5-7 months after the application for naturalization.
At that interview, you will be required to show that you can speak and write English, and you must pass a test on the history and government of the United States. If you are successful with your interview, you will be given a time and place for an oath ceremony. At that oath ceremony, you will pledge the Oath of Allegiance, receiving a naturalization certificate. At this point, you are entitled to every benefit of U.S. citizenship, including the ability to vote, to hold a job only available to a U.S. citizen, to sponsor your relatives, and to serve as a juror.
More About Family-Based Immigration
Family-based immigration is the primary path to legal immigration to the United States. In fact, immigration has largely been family-based since the 17th century, but in 1965 the Immigration and Nationality Act of 1965 made it formal, setting family ties as the primary method of immigration. Today, family-based visas account for at least 65 percent of legal immigration to the United States.
Critics of family-based immigration refer to it as “chain” migration—bringing a “chain” of relatives into the country via family-based immigration laws. On average, an immigrant typically sponsors 3.5 relatives, most often, spouses and children. A visa will require applications, numerous screenings and background checks, an interview, fees, and a medical examination. The sponsoring relative must be over the age of 18—in some cases 21—and must reside in the United States.
In the petition filed by the sponsoring relative, he or she must prove the legitimacy of the relationship and show the income requirements are properly met. The sponsor is also required to submit a signed affidavit of support that says he or she will be financially responsible for the family member. The USCIS examines green card applications carefully in an effort to ensure the incoming immigrant will not be a burden to the United States by being on public assistance.
Family-based immigrants may wait years—sometimes even decades—for a green card, however, family-based immigration is extremely important to immigrants in the United States by providing them with family support. The initial earning gap seen between immigrants entering the U.S. via family-based, and those who enter the U.S. via employment visas, narrows over time. Although family immigration is initially associated with lower earnings, those lower earnings do not last long.