Family-Based Permanent Residence

There are several categories of family-based immigration, including immediate relatives of U.S. citizens (spouse, minor and unmarried children, and parents) and preference relatives (unmarried sons and daughters of U.S. citizens, spouses and unmarried sons and daughters of lawful permanent residents, married sons and daughters of U.S. citizens, and brothers and sisters of U.S. citizens). These categories are discussed below.

Immediate Relatives of U.S. Citizens

The advantage of qualifying as an immediate relative for family-based immigration is that there is no annual numerical limitation or wait time for sponsorship. Immediate relatives of U.S. citizens include the spouse, minor and unmarried children less than 21 years of age, and parents. For parents of a U.S. citizen to qualify as immediate relatives, the petitioning son or daughter must be at least 21 years of age.

The definition of immediate relative includes widows of U.S. citizens, provided that the foreign spouse was married to the U.S. citizen for at least two years prior to the U.S. citizen’s death and was not legally separated from the citizen at the time of his or her death. A petition for permanent residence by a widow must be filed within two years after the U.S. citizen’s death and before the foreign spouse remarries.

Preference Relatives

Unlike the immediate relative category, the preference family-based immigration categories generally have annual numerical limitations. Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant’s priority date. The applicant cannot apply for permanent residence until his or her priority date is reached, which may take several years for certain heavily oversubscribed categories.

The family-based preference categories are as follows:

  • Family First Preference: Unmarried sons and daughters (21 or older) of U.S. citizens;
  • Family Second Preference: Spouses, unmarried minor children, and unmarried sons and daughters (21 or older) of lawful permanent residents;
  • Family Third Preference: Married sons and daughters of U.S. citizens;
  • Family Fourth Preference: Brothers and sisters ofU.S. citizens, provided the U.S. citizens are 21 or older.

The Visa Bulletin, which is released each month by the U.S. State Department, provides the cut-off dates in each of the preference categories outlined above.

Application Procedures for Immediate Relatives

Adjustment of Status

For permanent residence applications based on marriage to a U.S. citizen, where both individuals are in the United States, it may be possible for the foreign spouse to apply for permanent residence within the United States through a process called adjustment of status. To begin this process, the U.S. citizen submits an immigrant visa petition on Form I-130 to the local U.S. Citizenship & Immigration Services (USCIS) office having jurisdiction over the foreign spouse’s place of residence. At the same time, the foreign spouse submits an application for adjustment of status on Form I-485, photographs, a medical examination, and numerous other USCIS forms. The foreign spouse may apply for an Employment Authorization Card (EAD) and Advance Parole to allow him or her to work and travel while the application is pending. The burden is on the parties to establish the bona fides of the marriage, and the couple must prove that that the marriage was not entered into for the sole purpose of obtaining a green card.

USCIS schedules an in-person interview for the couple, generally within 6 to 12 months, depending on the location. The couple may have attorney representation at the interview.

Consular Processing

Where the couple has married abroad, the foreign spouse usually must remain abroad until obtaining approval of an immigrant visa by a U.S. embassy or consulate outside of the United States. (If the parties are not yet married, it may be possible for the foreign fiancé/fiancée to enter the United States on a K-1 visa. Please also see the K-3 visa, which may allow the foreign spouse to come to the United States more quickly, but does not result in permanent residence. An individual who enters the United States on a K-3 visa must apply for Adjustment of Status after arriving to obtain permanent residence.)

To initiate the immigrant visa application, the U.S. citizen spouse must submit an I-130 visa petition to either the appropriate USCIS office in the United States (if the U.S. citizen spouse resides in the United States) or directly to the U.S. embassy or consulate in the country where the foreign citizen spouse lives (if the U.S. citizen spouse also resides there). Depending on the filing method for the visa petition, it could take several months to obtain the approval.

Once the visa petition has been approved, the foreign spouse will receive several mailings from the U.S. State Department’s National Visa Center (NVC) and the U.S. embassy or consulate abroad. These mailings will inform the spouse of the items required at the immigrant visa interview abroad and will include various application forms. The foreign spouse will need to submit a number of documents, including photographs, police certificates, and a medical examination. It usually takes five to six months for the immigrant visa interview to be scheduled after approval of the I-130.

Application Procedures for Preference Relatives

Adjustment of Status

For permanent residence applications based on marriage to a lawful permanent resident or the other family relationships included in the four preference categories, where the foreign relative is in the United States, it may be possible for the foreign relative to apply for permanent residence within the United States through a process called Adjustment of Status. To begin this process, the U.S. citizen or Lawful Permanent Resident sponsor submits an immigrant visa petition on Form I-130 to the local U.S. Citizenship & Immigration Services (USCIS) office having jurisdiction over the foreign relative’s place of residence. As described above, the filing date of a petition becomes the applicant’s priority date. The applicant cannot apply for permanent residence until his or her priority date is reached, which may take several years for certain heavily oversubscribed categories. (Where the Form I-130 was filed before December 21, 2000, a foreign spouse or unmarried minor children of a lawful permanent resident may be eligible for a V visa to await the availability of permanent residence.)

Once the I-130 is approved, and after the foreign relative’s priority date is current based on the U.S. State Department’s Visa Bulletin, the foreign relative submits an application for adjustment of status on Form I-485, photographs, a medical examination, and numerous other USCIS forms. The foreign relative may apply for an Employment Authorization Card (EAD) and Advance Parole to allow him or her to work and travel while the application is pending. The burden is on the parties to establish the validity of the relationship.

USCIS schedules an in-person interview for the foreign relative and the U.S. citizen or Lawful Permanent Resident sponsor, generally within 6 to 12 months, depending on the location. The foreign relative may have attorney representation at the interview.

Consular Processing

Where the foreign relative resides abroad, he or she usually must remain abroad until obtaining approval of an immigrant visa by a U.S. embassy or consulate outside of the United States.

To initiate the immigrant visa application, the U.S. citizen or Lawful Permanent Resident relative must submit an I-130 visa petition to the appropriate USCIS office in the United States.

Once the I-130 is approved, and after the foreign relatives priority date is current based on the U.S. State Department’s Visa Bulletin, the foreign relative will receive several mailings from the U.S. State Department’s National Visa Center (NVC) and the U.S. embassy or consulate abroad. These mailings will inform the relative of the items required at the immigrant visa interview abroad and will include various application forms. The foreign relative will need to submit a number of documents, including photographs, police certificates, and a medical examination. It usually takes five to six months for the immigrant visa interview to be scheduled.

Conditional Residence

If a family-based permanent residence application is based on a marriage and the marriage is less than two years old when the foreign spouse becomes a permanent resident, the permanent residence will be conditional and the green card will expire after two years. Both spouses must submit a joint petition on Form I-751 to remove the condition within the 90-day period immediately preceding the expiration of the conditional residence. If the marriage has terminated by reason of divorce, death of the U.S. citizen spouse, or spousal abuse, the foreign spouse may apply for a waiver of the joint petition requirement.