Family-Based Immigration

Ranges from bringing in immediate relatives of U.S. citizens (e.g., spouse and minor, unmarried children and parents) to “preference” relatives in several categories (e.g., unmarried sons and daughters of green card holders and U.S. citizens, married sons and daughters of citizens, and brothers and sisters of U.S. citizens). The United States has provisions for certain visa holders to bring dependents such as their spouses and children on accompanying visas.

The Immigration and Nationality Act allows U.S. Citizens or Lawful Permanent Residents (green card holders) to sponsor the immigration of foreigners to the United States based upon family relationships. A U.S. consular officer will issue a visa after the USCIS approves a petition filed by a qualified family member. After the petition is approved the visa may be issued in as little as 90 days or as long as 25 years depending upon which of the categories listed below apply and depending upon the immigrant’s home country. However, not all family relationships serve as a basis to apply for Lawful Permanent Resident status.

A U.S. Citizen may file a petition on behalf of his/her:

Husband, wife, or child under the age of 21 (immediate relative);
A parent if the U.S. citizen is at least 21 years of age (immediate relative);
An unmarried son or daughter 21 years or older and their children (first preference);
Married son or daughter of any age and their children (third preference);
Brother or sister if the U.S. citizen is at least 21 years old and his or her spouses and children (fourth preference)
A Lawful Permanent Resident can file the petition on behalf of his/her:

Husband or wife, and children under the age of 21 (second preference A);
Unmarried child 21 years or older (second preference B).
The Immediate Relative category, as noted above, in effect, has no limit on the number of visas issued each year and there is no wait other than the time it takes the USCIS to process the visa petition. Under Section 245(a) of the Immigration and Nationality Act, a U.S. citizen may petition for an immediate relative and he or she may adjust status in the U.S., so long as the alien entered the U.S. legally. Under Section 245(i), a US citizen may petition for an immediate relative and he or she may adjust status here in the U.S. even if that relative has fallen out of status, worked without permission, entered as a crewman, been admitted in transit, or been admitted under the visa waiver program.

Aliens other than immediate relatives fall into one of the four limited family based preference categories, and a visa will not be immediately available as there is a numerical limit on the number of visas issued each year. More aliens want visas than are currently available. Therefore, there may be a long waiting period for the visa to be issued. When the application is received by the USCIS they will note the filing date or the “priority date.” The applicant must wait for the priority date to be current before he or she can file to adjust status or apply for an immigrant visa.

Child Status Protection Act: On August 6, 2002, the Child Status Protection Act was signed into law. This new law addresses the problem of minor children losing their eligibility for certain US immigration benefits as a result of United States immigration processing delays. In the past, a child’s eligibility to receive a visa or be part of his or her parent’s application was based on the child’s age at the time that the alien relative petition was approved, not the time the petition was filed. However, because of enormous backlogs and processing delays, many children turned 21 before US immigration adjudicated the petition.

In such cases, the child would “age-out” and become ineligible to receive an immediate relative visa or would no longer be considered part of the parent’s application. The child’s petition would either automatically move to a lower preference category or the child would be required to submit his or her own petition, resulting in years of delays and possible ineligibility.

The new act provides that the determination of whether an unmarried alien son or daughter of a US citizen is considered an “immediate relative child” (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I-130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the case under current law.

The new law also provides similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the first situation, the age determination will be made at the time of the parents’ naturalization. In the latter, the alien beneficiary’s age will be determined as of the date of his or her divorce.

For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability.

In addition, the new law provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status.

Finally, the new law provides that the family-sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a petition for an unmarried son or daughter of a United States citizen, unless the son or daughter elects otherwise.