Family Based Green Cards

There are two main classes of family based Green Cards:

• Immediate relatives are the spouses, unmarried minor children, and parents of U.S. citizens. The great advantage of this category is that there are no quotas, and no waiting periods beyond the time needed to process the necessary applications.
   
• The preference categories are subject to quotas. As a result, there are waiting periods that depend on the category and the country of origin. The categories are as follows:
  1. The first preference consists of the adult, unmarried children of U.S. citizens.
  2. The second preference is divided into two parts: the spouses and minor children of U.S. permanent residents (2A), and the adult, unmarried children of U.S. permanent residents (2B). This is the only family category available for permanent residents.
  3. The third preference consists of the married adult children of U.S. citizens (including their spouses and children).
  4. The fourth preference consists of the brothers and sisters of adult U.S. citizens (including their spouses and children).

There is a two-step process in family based cases. First, the U.S. sponsor files an immigrant relative petition called an I-130 with Citizenship and Immigration Services (CIS, formerly the INS). After the petition is approved and the priority date becomes current, the foreign relative can apply to a U.S. consulate abroad for an immigrant visa. If the foreign relative is already in the U.S. in a legal status, the relative can file an I-485 to adjust status to that of a permanent resident, without leaving the United States. (If you are not in legal status, you may still be able to adjust status - see a lawyer!) In the case of an immediate relative in the U.S., both the I-130 and the I-485 can be filed at the same time through the National Benefits Center. After processing, they are referred to the district offices for an interview.

The sponsors of all family based applicants must sign a legal document promising to support the immigrant financially if necessary. This is called an "Affidavit of Support." Income tax returns and other evidence must be provided to show the sponsor has enough income to meet this obligation. If the sponsor is unemployed, a co-sponsor may be needed.  The Affidavit of Support is filed with the application for an immigrant visa or application for adjustment of status, not with the I-130.  Anyone who signs an Affidavit of Support must be resident in the United States, not in a foreign country. As a result, your sponsor must be resident in the U.S. at the time you immigrate.

In many situations it is very important for a child to immigrate before reaching the age of 21. For instance, the children of beneficiaries in the preference categories can immigrate with their parents; once they turn 21, then cannot. A new law, called the Child Status Protection Act, "freezes" the age of children in certain circumstances. This new law is very complex. You must consult with an immigration lawyer if a child is expected to turn 21 before the immigration process is complete.

A major problem in family based immigration is that a family member waiting for an immigrant visa will usually not be allowed to enter the United States as a visitor. An new law called the LIFE Act creates a new "K-3" visa to let the spouses and minor children of U.S. citizens live and work in the U.S. while they wait for their green cards. There is also a new "V" visa for the wives and children of permanent residents, but it is only available if (1) the dependents have been waiting for at least three years and (2) the immigrant petition was filed before December 21, 2000. Click here to find out more about LIFE Act visas.

What if you are planning to get married and one of you is a U.S. citizen? There are two options.

• You can get married first, while the foreign spouse is still outside the United States. Then you can file the I-130, wait for it to be approved, and then apply for an immigrant visa. In some countries, including Canada, you can file the I-130 at the consulate if the U.S. citizen sponsor is a resident of the foreign country. If you are waiting for the I-130 to be approved at a Service Center, you can apply for the new K-3 visa while you are waiting for the I-130 approval. Once in the U.S. on the K-3, you can adjust status after the I-130 is approved, or you can leave the U.S., get your immigrant visa abroad, then return to the U.S. as a permanent resident.
• The other option is to apply for a K-1 "fiancé(e)" visa. You must file an I-129F petition with one of the Service Centers, then apply for a K-1 visa at a U.S. consulate abroad. Once you have your K-1 visa, you have ninety days to get married. Once you are married, you must apply for adjustment of status.

Which option is best? It depends on your individual circumstances, and on processing times for the different petitions involved at the offices where you will be filing. The key is to consult with an immigration lawyer before you get married, while you still have both options open.

What about entering the U.S. as a tourist, then getting married and adjusting status? The government often sees this as a fraudulent attempt to avoid the fiance visa procedure, especially if the marriage occurs soon after the entry, and if it appears to have been planned in advance. The penalty for fraud is permanent exclusion from the United States. Don't try this dangerous shortcut!

More more information on U.S.-Canada marriages, click here.

Family based immigration is more complex than ever before. We can help you find your way through the legal maze.