Family Based Immigration
Immigration & Nationality Law
U.S. citizens and lawful permanent residents can petition to obtain lawful permanent residence (“LPR”) status for certain family members. How quickly an eligible family member can obtain LPR status depends on whether the family member qualifies to immigrate to the United States as the immediate relative of a U.S. citizen or must immigrate under one of preference classifications subject to numerical limitations on the availability of immigrant visa numbers. The length of time before a visa number becomes available to a preference applicant depends on the specific preference and the county of chargeability of the immigrant visa applicant. As a general matter, foreign nationals who seek to immigrate to the United States as an immediate relative of a U.S. citizen or under one of the family-based preferences must be the beneficiaries of a Form I-130, Petition for Alien Relative, filed by their U.S. citizen or LPR relative. Foreign nationals outside the United States who are the beneficiaries of approved Form I-130 Petitions must apply for an immigrant visa at a U.S. Embassy or U.S. Consulate. Whether a foreign national in the United States can adjust their status to LPR status without departing the United States and applying for an immigrant visa at a U.S. Embassy or U.S. Consulate depends on many factors, including, but not limited to, the status in which entered the United States, their immigration and employment history, and in some cases their or their parents’ past efforts to immigrate to the United States. Foreign nationals who qualify to apply for LPR status as a relative of a U.S. citizen or a LPR must still prove they are admissible to the United States. Applicants can be denied immigrant visas or adjustment to LPR status if they are inadmissible to the United States based on their past immigration history, a fraud or a misrepresentation committed in applying for visas or admission to the United States or an immigrant benefit, their criminal history, as well as a number of other factors that could make a foreign national inadmissible to the United States. Depending on the specific ground of inadmissibility or whether they have certain qualifying U.S. citizen or LPR relatives, applicants for immigrate visas or adjustment of status may be able to apply for a waiver of a ground of inadmissibility applicable to them. In most cases, applicants for immigrant visas at U.S. Embassies or U.S. Consulates cannot apply for a waiver of a ground of inadmissibility until they are denied an immigrant visa. However, immigrant visa applicants who are in the United States but will be subject to the ground of inadmissibility applicable to individuals who have been unlawfully present in the United States after turning 18 years of age for more than 180 days or one year or more may be eligible to apply for and be granted a provisional waiver in advance of their departure from the United States to attend an immigrant visa appointment at a U.S. Embassy or U.S. Consulate.
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Who qualifies to apply an immigrant visa or adjustment of status as an immediate relative of a U.S. citizen?
Spouses of U.S. citizens, parents with a U.S. citizen son or daughter over the age of 21, and the children under age 21 years of age of U.S. citizens qualify to become LPRs as “immediate relatives.” Stepchildren and stepparents qualify as “immediate relatives” if the marriage creating the step relationship occurs before the qualifying child turns 18 years of age. Adopted children can be immediate relatives only if the adoption occurs before the child turns 16 years of age. Each person in a family who is seeking to apply for an immigrant visa or adjustment of status as an immediate relative of a U.S. citizen must be the beneficiary of an approved Form I-130, Petition for Alien Relative, filed by the U.S. citizen who qualifies them as immediate relative. Unlike preference immigrants a foreign national who is immigrating to the United States or applying for adjustment of status as the immediate relative of a U.S. citizen cannot qualify their spouses or children as accompanying or following to join family members.
Who qualifies to apply to become an LPR under the family-based preference system?
The following classifications of relatives qualify to immigrate to the United States under the family-based preference system:
First Preference: Unmarried adult (21 years of age or older) sons and daughters of U.S. citizens;
Second Preference, Category A: Spouses and unmarried children under 21 years old of age of LPRs;
Second Preference, Category B: Unmarried adult (over 21 years of age) sons and daughters of LPRs; and
Third Preference: Married sons and daughters of U.S. citizens.
Fourth Preference: Brothers and sisters of adult (21 years of age or older) U.S. citizens.
The availability of visa numbers for immigrant visa applicants under the family-based preference is determined monthly by the U.S. Department of State and is set forth in the Visa Bulletin which can be found at: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
In view of the lengthy waiting times to immigrate under the family-based preference system, individuals who qualify to immigrate under the family-based preference system may want to consider alternative ways of immigrating to the United States, for example, through offers of employment, special skills, outstanding talent, extraordinary ability, or investment in the United States. For information on these alternatives means of immigrating to the United States, we suggest you review this website at 312-239-7676.
Entering the United States as a fiancé or fiancée of a U.S. citizen.
U.S. citizens can petition to bring their fiancé or fiancée to the United States with a K-1 nonimmigrant visa. Following approval by the United States Citizenship and Immigration Services (“USCIS”) of a U.S. citizen’s K-1 petition, the fiancé(e) can apply for a K-1 nonimmigrant visa at a U.S. Embassy or U.S. Consulate that processes such visa applications. To remain in the United States and apply for adjustment of status to LPR, the U.S. citizen and his or her fiancé(e) must marry within 90 days of the foreign national’s admission in K-1 status.
Foreign nationals applying for K-1 status as fiancé(es) can bring their unmarried children under 21 years of age to the United States with them and the children can also apply for adjustment of status to LPR status. When a foreign national who enters in fiancé or fiancée status is granted LPR status, the LPR status is conditional for 2 years. During the 90 days before the end of the 2-year period of conditional permanent residence, the spouse and any children who came to the United States in fiancé(e) status must petition the USCIS for the conditions on their residence to be removed by the filing of a Form I-751, Petition to Remove Conditions on Residence.
Couples who are engaged or contemplating engagement or marriage should consult with an attorney who has experience in counseling couples regarding their immigration options to determine whether the fiancé(e) nonimmigrant visa process would be advisable for them or whether given their particular situation they could might be better off getting married and filing a Form I-130, Petition for Alien Relative, so that the foreign national can apply for an immigrant visa or adjustment of status as the spouse of a U.S. citizen.
HSPRD Attorneys are experienced in advising and representing foreign nationals seeking LPR status based on the U.S. citizenship or LPR status of family members.
In view of the complexity of the process of obtaining LPR status as the relative of a U.S. citizen and a LPR, it is important to seek the advice and representation from attorneys with experience in family immigration matters. HSPRD attorneys have years of experience advising and representing families concerning the options available for obtaining LPR status as the immediate relatives of U.S. citizens or under the family-based preference system. To schedule a consultation with HSPRD attorneys about a family immigration matter, contact our Firm at 312-239-7676.
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