Most immigrants that obtain green cards do so through a familial relationship. Congress has expressed that one of the primary purposes of the Immigration and Nationality Act (“INA”) is the reunification of families; as such, the INA provides numerous avenues for family members to petition on behalf of their alien relatives. The petition process will be discussed further below. Family- based immigrant visas are broken up into different preference categories based on the nature of the familial relationship. However, even though family- based immigrant petitions are a generally favorable avenue for seeking a green card for your relative, they are not available for all family members of citizens or LPRs, and such petitions are not treated equally between the two.
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Family Based Immigrant Visas – Commonalities for U.S. Citizens and LPRs
The INA defines immediate relatives as spouses and children. And even though the immediate relatives of citizens and LPRS are treated differently under the INA, their definitions are the same. In addition, the spouses and children of visa holders are entitled to an immigrant visa in order to join or accompany their spouse or parent, even if they are not entitled to immigrant visas themselves.
Whether the petitioner is a U.S. citizen (“citizen”) or an LPR, the spousal relationship must be the product of a marriage that was both legal in its place of celebration and recognized under the INA. It will generally be easier to satisfy the first prong of this test than the second, as other countries, and even states in the United States, recognize marriages that the federal government and the INA do not. For example, the 9th Circuit ruled that the spouse in a same-sex marriage was not a spouse for immigration purposes since the INA did not recognize same-sex marriages; therefore, even though the marriage was legal marriage in the place of celebration, the INA would not honor it. And given the federal government’s prerogative to make law in the immigration context that it would not be able to make domestically, any same-sex marriage rights extended to citizens domestically would not necessarily apply to immigration law.
Further, no matter what, the petitioner must show that he or she did not enter into the marriage with the beneficiary spouse for immigration purposes. As will be demonstrated below, the spouses of petitioners—whether a citizen or LPR—are in an advantageous position when it comes to immigrant visas; as such, the federal government is on the lookout for so-called “green card marriages.” To combat these sorts of arrangements, the INA imposes a two-year conditional period for spouses who obtain a green card by virtue of marriage. Within 90 days of the conditional period’s termination, the couple must petition the government to have that status lifted. If they do not do so, the green card holder will lose his or her green card and be out of status.
Another special situation in which the government suspects “green card marriages” is when the marriage was entered into while the beneficiary was in removal proceedings. In such situations, the beneficiary applies to adjust his or her status in the wake of having married a citizen, the timing of which the government views as too fortunate. Given this suspicion, the INA requires the couple to prove by a preponderance of the evidence that they entered into a “bona fide” marriage in order to allow the beneficiary to adjust his or her status. Documentary evidence to support this “bona fide marriage” exception can take the form of affidavits, statements from jointly-held bank accounts, credit card accounts, or phone bills, pictures, phone records, and other proof that the couple did not enter into the marriage for immigration purposes. The process of adjusting status will be discussed more below.
For the purposes of immigration law, not all children are “children.” A child is only a “child” under the INA if that child is unmarried and under the age of 21. Child may include step children and adopted children, so long as certain requirements are met. For a step-child to qualify as a child, the marriage creating that relationship must have taken place before the child turned 18. As for adopted children, the petitioning parent must have adopted the child before the child turned 16 and the child must have lived with the petitioning parent for at least two years. In terms of children born out of wedlock, they may also qualify as children of a petitioning parent in certain circumstances. As described above, the government’s ability to enact unequal laws in the context of immigration allows the INA to make it easier when the mother petitions on behalf of the child out of wedlock than when a father does so in the same situation. Moreover, special rules apply for children that are to be adopted abroad.
Also, the children of citizens and LPR all face the same prospect of “aging out,” which is when the petition on behalf of a child takes so long to become available that the child reaches 21 years of age and is therefore no longer eligible to receive the visa. This phenomenon occurs because the INA looks at the child’s age as of the date that the child’s immigrant visa becomes available. Thus, if a parent petitions for the admission of her son that is 19 years old, her son’s immigrant visa will have to become available within two years or else he would no longer qualify as her child for immigration purposes – he would be her unmarried son. Fortunately, if a child ages out, he or she will still retain his or her original date of petition. Also, should a child’s immigrant visa become available before he or she reaches 21 but it takes so long to process the visa and he or she turns 21, that processing time will be discounted and the immigrant visa still will be available to the child. As will be discussed below, this problem only presents itself for LPRs applying on behalf of their children, since family based immigration visas for the children of citizens are available immediately while those for LPRs may take years and even decades to become available. Lastly, if the child gets married he or she would not qualify as a child for immigration purposes.
Family Based Immigrant Visas – U.S. Citizens
For U.S. citizens (“citizens”) petitioning on behalf of their alien relatives, a slightly wider range of family members may be eligible for family based visas, and wait-times for visas to become available are shorter, if they exist at all.
First, the immediate relatives of citizens are available immediately. An immediate relative is the spouse or child of a citizen. If that citizen is over the age of 21, the citizen’s parent would also be considered an immediate relative. Even though the number of immediate relatives of citizens admitted goes towards the overall cap on family based immigrant visas per year, this preference category does not have a numerical cap, which means immigrant visas for immediate relatives will be immediately available.
Beyond a citizen’s immediate relatives, his or her unmarried sons and daughters may be the beneficiary of a family based immigrant petition and are in the first preference category. There is both a numerical cap for these visas and a sizable wait until such a visa will become available. Depending on the beneficiary’s country of origin, the wait could be anywhere from 7 to 20 years.
Married sons and daughters of citizens are eligible to receive green cards through a family based immigrant petition under the third preference category. This option is only available to citizens; the married sons and daughters of LPRs are not eligible for a family based immigrant visa. Like the unmarried sons and daughters of citizens, there is a limit on the number of married sons and daughters that may receive an immigrant visa every year, and the current wait for such a visa could run between 10 and 20 years.
Lastly, a citizen may petition for a green card for his or her brothers and sisters, who are members of the fourth preference category. Like married sons and daughters, however, this option is not available to LPRs – only the brother or sister of a citizen may be eligible for a green card under a family based preference. In addition, even though the numerical cap on brothers and sister of citizens is greater than those of the first and third preference categories, as the fourth preference category it has the longest waits. Currently, members of the fourth preference category will wait anywhere between 12 and 24 years, depending on their country of origin.
Family Based Immigration Visas – LPRs
As has already been mentioned, there are fewer preference categories for the relatives of LPRs. In fact, there is only one preference category available to LPRs, although it is broken up into two parts.
The first part of the second preference category is for the spouses and children of LPRs. As discussed above, it is in this situation that “aging out” is most prevalent. If the child ages out, he or she will drop into the bottom half of the second preference category: immigrant visas available for the unmarried sons and daughters of LPRs. And “aging out” can have huge consequences—the higher percentage of immigrant visas allocated for the spouses and children of LPRs creates a substantial difference in wait times. The child of an LPR may wait for approximately three years, regardless of his or her country of origin. But if that child becomes the unmarried son or daughter of an LPR, that wait time can jump up to anywhere between 8 and 20 years, depending on the child’s country of origin. Lastly, it is important to remember that any LPR’s child—whether a child or an unmarried son or daughter—that gets married is no longer eligible for any family based immigrant visa.
Family Based Immigrant Visas – Petition Process
United States citizens and Lawful Permanent Residents (“LPRs”) can file a Form I-130 Petition for Alien Relative on behalf of an alien relative that is inside the United States or outside the United States. If the beneficiary is the petitioner’s spouse, the Form I-130 must be accompanied by a Form G-325A – Biographic Information, along with color photographs of each spouse. Besides limited exceptions, the petitioner must file the Form I-130 in the United States. The citizen or LPR files this petition by sending it to a US CIS Lockbox in either Phoenix or Chicago, depending on the state in which the petitioner lives. If it is approved, US CIS forwards the petition to the National Visa Center (“NVC”) for processing. Once the petition has been processed—which may take an extended period of time—the NVC will send the petition to the appropriate U.S. Consulate, with whom it will coordinate in order to set up an interview with the beneficiary. If the interview goes well, the U.S. Consulate will grant the alien a green card; however, the green card will only give the alien permission to travel to a United States port of entry. Upon arrival, the Customs and Border Patrol (“CBP”) will have the ultimate authority to permit or deny the alien’s entry into the United States.
If the alien relative is already in the United States, that relative must also file a Form I-485 Application for Application to Register Permanent Residence or Adjust Status (“Application for Adjustment of Status”). In order for an alien to successfully adjust its status, it must: (1) apply to do so; (2) be eligible for the immigrant visa it seeks and be admissible; and (3) the immigrant visa in question must be available immediately.
If the alien is an immediate relative of a citizen, the alien may file his or her I-485 Application for Adjustment of Status simultaneously with the citizen relative’s Form I-130 Petition, assuming her or she is admissible (which will be discussed below), since immigrant visas for the immediate relatives of citizens are immediately available. In these cases, the Form I-130 and Form I-485 are both sent to the Chicago Lockbox. For all other relatives, they will have to wait until their immigrant visa becomes available before filing the Form I-485 Application for Adjustment of Status.
However, that beneficiary alien will still have to leave the country in order to have its interview in a U.S. Consulate outside the country concerning the Form I-130 Petition filed on his or her behalf. This requirement may pose a problem when the alien relative is the immediate relative of a citizen but that alien relative entered the United States without inspection, for depending on how long the alien relative has been in the United States, he or she may face a 3 or 10 year ban if he or she were to leave the country and try to re-enter. But thanks to the recently enacted Stateside Waiver, certain immediate relatives that entered the United States without inspection can obtain a pre-approved extreme hardship waiver that will secure their re-entry to the United States after departing to interview in a U.S. Consulate outside the country. This waiver allows the alien to avoid the risk of leaving the country to interview for a green card, only to be prohibited from re-entering the United States for 3 or 10 years.
An exception to this whole process is for K-1 Fiancé(e) Visa holders, who upon marriage need not file a Form I-130 Petition and interview outside the country; instead, such aliens need only file the Form I-485 Application for Adjustment of Status.
It is important to remember that just because an alien relative is eligible for a green card based on a familial relationship, the alien must still satisfy all other admissibility requirements in order to be approved for a green card. For example: the alien relative may not have any communicable disease or any other serious health condition; the alien may not have convicted of any crimes; the alien may not pose a threat to the nation’s national security; the petitioner must ensure the alien will not become a public charge by filing a Form I-864 Affidavit of Support; and the alien may not have previously violated the immigration laws of the United States. However, certain waivers and exceptions can excuse an alien’s ground for inadmissibility, such as the previously mentioned extreme hardship waiver.