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Family Based
IMMIGRATION THROUGH A FAMILY MEMBER
Overview and Process
A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. If you want to become a lawful permanent resident based on the fact that you have a relative who is a citizen of the United States, or a relative who is a lawful permanent resident, you must go through a multi-step process.
The USCIS must approve an immigrant visa petition, I-130 Petition for Alien Relative, for you. This petition is filed by your relative (sponsor) and must be accompanied by proof of your relationship to the requesting relative.
The Department of State must determine if an immigrant visa number is immediately available to you, the foreign national, even if you are already in the United States. When an immigrant visa number is available, it means you can apply to have one of the immigrant visa numbers assigned to you. You can check the status of a visa number in the Department of State's Visa Bulletin.
If you are already in the United States, you may apply to change your status to that of a lawful permanent resident after a visa number becomes available to you. This is one way you can apply to secure an immigrant visa number. If you are outside the United States when an immigrant visa number becomes available, you must then go to the U.S. consulate servicing the area in which you reside to complete your processing. This is the other way to secure an immigrant visa number.
Eligibility
In order for a relative to sponsor you to immigrate to the United States, they must meet the following criteria:
- They must be a citizen or lawful permanent resident of the U.S. and be able to provide documentation providing that status
- They must prove that they can support you at 125% above the mandated poverty line, by filling out an Affidavit of Support
The relatives which may be sponsored as an immigrant vary depending on whether the sponsor is a U.S. Citizen or a lawful permanent resident.
If the sponsor is a U.S. Citizen, they may petition for the following foreign national relatives to immigrate to the U.S:
- Husband or wife
- Unmarried child under 21 years of age
- Unmarried son or daughter over 21
- Married son or daughter of any age
- Brother or sister, if the sponsor is at least 21 years old, or
- Parent, if the sponsor is at least 21 years old
If the sponsor is a lawful permanent resident, they may petition for the following foreign national relatives to immigrate to the U.S.:
- Husband or wife, or
- Unmarried son or daughter of any age
In any case, the sponsor must be able to provide proof of the relationship.
Preference Categories
If you wish to immigrate as a relative of a U.S. Citizen or lawful permanent resident, you must obtain an immigrant visa number based on the preference category in which you fall.
IMMEDIATE RELATIVE
People who want to become immigrants are classified into categories based on a preference system. The immediate relatives of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by USCIS. An immigrant visa number will become immediately available. The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:
| FIRST PREFERENCE |
Unmarried sons or daughters of US citizens over age 21 |
| SECOND PREFERENCE |
This preference in broken into section 2A and 2B |
| 2A |
Spouses and unmarried children of lawful permanent residents |
| 2B |
Unmarried Sons and Daughters (21 years of age or older) |
| THIRD PREFERENCE |
Married sons and daughters of US citizens |
| FOURTH PREFERENCE |
Fourth Preference: Brothers and sisters of US citizens |
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Once USCIS receives your visa petition (Form I-130, Petition for Alien Relative), it will be approved or denied. USCIS notifies the person who filed the visa petition of the petition was approved. USCIS will then send the approved visa petition to the Department of State's National Visa Center, where it will remain until an immigrant visa number is available. The Center will notify the foreign national when the visa petition is received and again when an immigrant visa number is available. You do not need to contact the National Visa Center, unless you change your address or there is a change in your personal situation, or that of your sponsor, that may affect eligibility for an immigrant visa, such as reaching age 21, marriage, divorce, or death of a spouse.
Consular processing - If you are overseas and qualify for a non-immigrant or immigrant visa. Pollack, Pollack, Isaac & DeCicco, LLP can process your visa via Consulate processing
For consular processing, the US citizen files for an intending-immigrant spouse who is residing OUTSIDE the United States. There are several steps to this procedure the last of which requires the immigrant spouse to attend an interview at the US consulate closest to the immigrant’s place of residence. During the processing period, the intending-immigrant spouse are likely to have difficulty acquiring a visitor visa or, for those who are visa exempt, to enter the United States altogether, as it will be difficult to show that the intending-immigrant does not have immigrant intent. In most cases, the INS will simply inform the intending-immigrant spouse that he/she is not allowed into the United States at all and must wait until the sponsorship process is completed.
For immigrant spouses who are already in the United States on a valid non-immigrant status (however, not all non-immigrant statuses allow a person to be sponsored for immigrant status see section on TN visas), the US citizen may file for the immigrant spouse in the US while also filing for an adjustment of status (from non-immigrant to immigrant) at a local INS District Office. The processing time for this method of application will vary depending on the District Office at which the application is made and the final interview will take place at the office itself.
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