The Immigration and Nationality Act allows for the immigration of foreign nationals to the U.S. based on a relationship to a U.S. citizen or legal permanent resident.
If you are a U.S. Citizen, you may petition for the following relatives, as long as you can demonstrate the relationships
- Husband or wife;
- Ellipse 2 copy 21
- Unmarried child under 21 years old;
- Unmarried son or daughter over 21 years old;
- Married son or daughter of any age;
- Brother(s) or sister(s), if you are at least 21 years old
If you are a Legal Permanent Resident (LPR, aka ?green card holder?), you may petition for the following relatives, as long as you can prove the relationships:
- Husband or wife;
- Unmarried child under 21 years of age;
- Unmarried son or daughter over 21 years of age.
LPRs cannot sponsor their parents, married children or siblings to live permanently in the U.S.
A sponsored relative must obtain an immigrant visa number based on their preference category. Family-based immigration is divided into two basic categories: unlimited that has no numeric limit on it and limited that has an annual numeric limit.
The unlimited category applies to spouses, parents and unmarried children under 21 years of age of U.S. Citizens. This means that these relatives are able to file for a Green Card petition immediately and within a few months will be able to immigrate to the U.S. If they are currently in the U.S. they will be able to adjust their status to Lawful Permanent Resident. The limited category is discussed below under PREFERECE CATEGORIES.
Additional Categories for Family Based Green Card
The following persons may also be able to obtain LPR status:
- A battered child or spouse of a U.S. Citizen (Violence Against Women Act, aka VAWA);
- Those entered the U.S. with a K visa as the fianc?e of a U.S. citizen (on K1 visa) or an accompanying child (on K2 visa);
- Widow(er) of a U.S. citizen or LPR;
- Those born to a foreign diplomat in the U.S.
Ineligibility for Family Based Green Card You may not file for a person in the following categories:
- An adoptive parent or adopted child, if the adoption took place after the child?s 16th birthday, or if the child has not been in the legal custody and living with the parent(s) for at least two years;
- A natural parent, if the U.S. Citizen son or daughter gained permanent residence through adoption;
- A stepparent or stepchild, if the marriage that created the relationship took place after the child?s 18th birthday;.
- A husband or wife, if you were not physically present at the marriage ceremony (marriage by proxy), and the marriage not consummated;
- A husband or wife, if you gained LPR status by virtue of a prior marriage to a U.S. Citizen or LPR unless:
- A period of 5 years has elapsed since you became a LPR; or
- You can establish by clear and convincing evidence that the prior marriage (through which you gained your immigrant status)was not entered into for the purposes of evading any provision of the immigration laws; or
- Your prior marriage (through which you became a LPR) was terminated by the death of your former spouse
- A husband or wife, if he or she was in exclusion, deportation, removal, rescission or judicial proceedings regarding his/her right to remain in the U.S. or while a decision in any of these proceedings was before any court on judicial review when the marriage took place, unless any of the following conditions apply:
- Such spouse has resided outside the U.S. for a two-year period after the date of the marriage;
- There is clear and convincing evidence that the marriage is legally valid where it took place; and that both of you married in good faith and not for the purpose of procuring the admission of your spouse as an immigrant, and that no fee or any other consideration (other than attorney?s fees) were given for filing the petition;
- A husband or wife, if it has been legally determined that such an alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws;
- A grandparent, grandchild, nephew, niece, uncle, aunt, cousin-i
The limited category applies to all the remaining relatives. This means that after the I-130, Petition for Alien Relative is approved the immigrant will need to wait for an available Green Card. This is because there are strict yearly numerical quotas for Green Cards. The wait times are updated each month on the Visa Bulletin. The limited category is further broken down into several subcategories the higher is the preference category, the shorter is the wait for an available visa.
Whenever the number of qualified applicants for a category exceeds the available quota, the category will be considered oversubscribed, and immigrant visas (aka Green Cards) will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. A petition?s filing date becomes the applicant?s priority date. Immigrant visas cannot be issued until an applicant?s priority date is reached. This means that in certain overly subscribed categories, the wait period might be several years before the preference category is reached. It is important to note that the immediate relatives of the applicant, spouse and unmarried children under 21 years of age, will be permitted to concurrently immigrate. In fact, when a petition is filed under the categories F1, F2B, F3 or F4, separate petitions are not required for applicant?s spouse and unmarried children under 21 years of age.
If the applicant?s priority date is not current and the applicant is abroad, the National Visa Center (NVC) is unable to expedite immigrant visa processing, even in cases of family emergency. Immigrant visa numbers are made available strictly in the order of the priority dates. There is no provision within the law that would allow NVC to waive numerical limitation in any individual case.
Despite the long wait times there is no provision for the applicant to live in the U.S. while the visa petition is pending. Nevertheless, an applicant may be able to obtain a dual intent non-immigrant visa such as H or L visa, if he/she independently qualifies. However, it would be more difficult to obtain a visitors? visa because it would be harder to prove no intention to immigrate when the immigrant petition is pending.
Please see the Visa Bulletin
The sub-categories, in order of preference, are as follows:
Family First Preference (F1): Unmarried adult (21 years or older) sons and daughters of U.S. citizens.
Annual quota is 23,400 plus any visa unused in F4 category.Applicants pursuant this classification must have met the definition of ?child? when he/she was under the age of 21.
Family Secondary Preference (F2): Spouses and unmarried children of Legal Permanent Resident
Annual quota: 114, 200 plus any visa unused in F1 category. At least 77% of all visas available for this category will go to the spouses and children; the remainder will be allocated to unmarried sons and daughters.
If the children get married after the I-130, Petition for Alien Relative is filed, the petition is considered invalid. Neither the married child/son/daughter not his/her spouse will be able to obtain a Green Card under this category.
Family Third Preference (F3): Married Sons and Daughters of U.S. Citizens
Annual quota: 23,400 plus any visa not used by F1 and F2 categories. Each applicant must have met the definition of ?child? for immigration law purposes.
Family Fourth Preference (F4): Brothers and Sisters of U.S. Citizens
Annual quota: 65,000 Each applicant must have met the definition of ?child? for immigration law purposes.
It is not possible to sponsor other relatives such as: grandparents, uncle/aunt, nice/nephew and cousins.