Family Based Immigrant Visa Petitions
Family Reunification is the principal policy underlying family immigration in the US since 1965. It allows relatives of US citizens and lawful permanent residents to immigrate to the US. Family members are either “immediate relatives” of US citizens. People can also immigrate under preference categories for US citizens or lawful permanent residents.
Immigrating as an immediate relative means that there are no waits and not quotas on the number of visas available. The family preference system allows the following people to immigrate:
- Adult children (married or unmarried) of US citizens
- Brothers and sisters of US citizens
- Spouses and unmarried children of lawful permanent residents
These numbers are controlled by numerical quotas. Visa backlog occurs because of oversubscription. United States consulates issue visas abroad while United States Citizenship and Immigration Services (USCIS) issues visas here in the US. USCIS and Executive Office of Immigration Review can adjust status in the US. Whether a person adjusts in the US or abroad depends on several factors. Sponsors must make 125% of thepoverty level.
Requirements for Family Relationships
The following definitions are used in the family immigration system:
- Petitioner: is the United States citizen or lawful permanent resident filing a petition on behalf of his child, spouse, parent, or sibling.
- Beneficiary: is the person on whose behalf the petition is filed.
- Spouse: the spousal relationship is usually be established before the petition is filed. The relationship is valid if it is valid at the place of marriage. The marriage must also not violate US public policy. The marriage must exist at the time the application for permanent residence is adjudicated. Separation does not negate validity.
- Parent: this includes stepparent, and adoptive parent, and the parent of a child born out of wedlock.
- Children: These include children who meet the definition under INA 101(b)(1) and under 21 years of age. A child who is born out of wedlock who is legitimated before the age of 18 is a child for immigration purposes. A stepchild is a child who was under 18 at the time the legal relationship was established. The relationship may continue even after divorce if the child shows continued relationship with the stepparent. Adopted children are children who were adopted under the age of 16. The adoption must be legally valid in the country of adoption. Orphans are those whose parents abandoned them and where under 16 when the legal relationship started.
- Unmarried is determined at the time of the filing of the immigrant visa petition. Marriage after the petition was filed has adverse effects for people in the second preference.
There are four preference categories in the United States:
- First: unmarried son or daughter, over 21 years of age, of US citizen parent, 23, 400 visas per year, plus any left over from 4th preference
- F-2A: spouses and unmarried children (under 21) of lawful permanent residents. 87,900 visas plus anything left from first preference
- F-2B- unmarried sons or daughters age 21 or older of lawful permanent residents, 26,300 visas plus anything left from first preference
- Third: married sons and daughter of US citizens, 23,400 visas plus anything left from first and second preference
- Fourth: brothers and sisters of US citizens, where citizen is at least 21; 65,000 visas plus anything left from previous preferences
Priority dates refer to the date on which the petition was filed. These priority dates are important to determine the day when a person may adjust status or begin consular processing. The priority date and the country of citizenship determine these dates. Cross-chargeability refers to the ability to use the principal applicant’s country of chargeability if the other beneficiaries are citizens of less advantageous countries, for visa preference purposes.
Derivative beneficiaries are those who qualify because of their familial relationship to the principal beneficiary. These beneficiaries usually do not have to be the beneficiaries of separate I-130 petitions, except for the F-2A category.
Retention of Priority Dates
Life changes may change a beneficiary’s ability to apply for permanent residence or consular processing. Marriage usually changes the preference category. A beneficiary in the first preference converts to the third preference. The child/son/daughter of a lawful permanent resident can not marry without revoking the I-130.
Divorce tends to work in the opposite way. The third preference automatically converts to the first preference. In the second preference, a new I-130 must be filed since the divorce revokes the I-130 petition.
Naturalization of the petitioner has several consequences. Principal beneficiaries under 21 in the F-2A category usually become immediate relatives. If the beneficiary is in the F-2B category, then they convert to the first preference. Beneficiaries may opt out the automatic conversion if they write USCIS or the Department of State if such change would harm them. Derivative beneficiaries under F-2A lose their preference, and the petitioner must file a new I-130 petition.
Death of the Petitioner may also have some effects on the beneficiary’s eligibility. The death of the Petitioner in an I-130 petition allows the beneficiary to file form I-1360 within two years of the petitioner’s death. The death of the petitioner after the approval of an I130 petition allows the beneficiary to receive benefits under INA 204(l) if the beneficiary finds a family member to file a new I-864 form. The Beneficiary must be in the United States to take advantage.
Aged out children may still benefit from the Child Status Protection Act if they meet certain criteria. These criteria are very complicated, and eligibility depends on the age of the beneficiary when the original petition was filed and the age at the time when the visa number becomes available.
If you would like to file for a family preference category, please call us at (888) 963-7326 to schedule a consultation.