Family Immigration

US immigration law allows citizens and green card holders to sponsor certain family members for permanent residence. The sponsoring relative in this process is referred to as the petitioner, while the person being sponsored is referred to as the beneficiary. Representation by an experienced family immigration lawyer is useful at any stage of the process.

This sponsorship is always a two-step process. In the first step, the sponsor files a form known as a Petition for Alien Relative, or I-130, with US Citizenship and Immigration Services (USCIS). Once that petition is approved, the beneficiary can apply for permanent residence, either by filing an application for adjustment of status in the US, on Form I-485, or by applying for an immigrant visa at a US consulate in the his or her home country. Where, when and how the beneficiary applies for permanent residence depends on the type of family relationship, whether the sponsor, or petitioner, is a US citizen or a permanent resident, and on the immigration status of the beneficiary.

Immediate Relatives and Preference Categories

Family relationships are divided into two main categories for immigration purposes.

The first category are “immediate family members”, which means the spouse, unmarried child under 21 years of age, or parent of an adult US citizen. There is no limit on the number of green cards available to these immediate relatives.

The second category actually consists of four “preference categories”: unmarried sons and daughters of US citizens (1st preference), spouses, children and unmarried sons and daughters of permanent residents (2nd preference), married sons and daughters of US citizens (3 rd preference), and siblings of US citizens (4th preference). A limited number of green cards are available to each of these preference categories every year. When there are more applicants than there are green cards, the category becomes over subscribed, and the person cannot get a green card until that category becomes “current”. Every month, the Department of State publishes a “ Visa Bulletin”, which contains a list of the different preference categories and the dates on which green cards are available in each of those categories. Once the receipt date on the I-130, known as the priority date, is the same as or earlier than the date for that category in the visa bulletin, the beneficiary can apply for permanent residence, assuming he or she is otherwise eligible.

Sponsorship for Immediate Relatives

In immediate relative cases, the I-130 and I-485 can be filed together, provided that the beneficiary entered the US lawfully, either with a visa, through a “parole”, was previously granted some type of temporary legal status such as Temporary Protected Status (TPS), or was previously the beneficiary of a visa petition or application for labor certification filed prior to April 2001 (this is known as “245i eligibility”, for the section of the immigration law that allows adjustment of status in those circumstances). It is important to remember that the beneficiary in an immediate relative petition does not have to be in lawful status at the time of applying for adjustment of status.

If the beneficiary did not enter the US legally – in other words, came across the border without going through an inspection check point – and is not 245i eligible, then he or she cannot apply for adjustment of status in the US. Instead, once the I-130 is approved, he or she will have to apply for an immigrant visa at the US consulate in their home country. This is known as consular processing. Consular processing has certain pitfalls, discussed below, and so adjustment of status is almost always preferable, if possible.

Assuming that the beneficiary is eligible to apply for adjustment of status, the I-485 is filed with USCIS at the same time as the I-130, along with the required documents, and an Affidavit of Support, on Form I-864, in which the sponsor agrees to be financially responsible for the beneficiary for up to ten years after being granted adjustment of status. Usually, the beneficiary will also file an application for a work permit, on Form I-765, and for a travel document, called an advance parole, on Form I-131, to allow them travel in and out of the US while the application is being decided.

An interview is then scheduled, usually within a number of months, and the sponsor and beneficiary are required to attend. The I-130 is adjudicated first, and this involves the parties being questioned about their relationship. A married couple will be expected to provide evidence of their relationship, including co-habitation, shared finances, joint insurance, joint taxes, and other proof of a shared life, in addition to answering questions about their relationship and their knowledge of each other. Assuming the I-130 is approved, the beneficiary is then questioned to determine whether or not he or she is admissible, meaning eligible for permanent residence. The most common grounds of inadmissibility are criminal convictions or arrests, and previous immigration violations. Some grounds of inadmissibility can be waived, and some cannot. A full discussion of waivers and how to apply for them is outside the scope of this article.

If the application for adjustment of status is approved, the person “adjusts status” to permanent resident and gets a green card. In marriage cases, where the couple are married for less than two years at the time the application for adjustment of status is approved, the person is granted conditional permanent residence and is issued a green card, which is good for two years. Ninety days before the two years is up, the couple files another petition, on Form I-751, along with proof of the continued relationship during the intervening two years, to “lift” the condition and make the permanent residence truly permanent. Usually, I-751 petitions are decided without interview, although one may be required on a case-by-case basis. If the couple are no longer married, then the conditional permanent resident can file the I-751 by him or her self, but will need to file extensive evidence proving that the marriage was initially entered into in good faith, and will usually be interviewed again by a USCIS officer.

If the I-130 is denied, the denial can be appealed to the Board of Immigration Appeals, which can take several months to well over a year. If the I-130 is denied, then the I-485 will also be denied, and the beneficiary may be placed in removal proceedings in Immigration Court, and can ask the Immigration Judge to postpone the case while the appeal of the denied I-130 is being considered. If the I-130 is approved and the I-485 is denied, for whatever reason, the beneficiary may also be placed in removal proceedings, and can then, if eligible, re-apply for permanent residence before the Immigration Judge.

Sponsorship for Preference Categories

In preference category cases (i.e., where the beneficiary is not the “immediate relative” of a US citizen), the rules are more complicated.

First, the I-130 is filed and adjudicated, usually without an interview. Then the beneficiary waits until the “priority date” becomes current. At that point, the beneficiary can apply for adjustment of status, provided he or she entered the country lawfully, and is either currently in a lawful nonimmigrant status, or has not accumulated more than 180 days unlawful presence in the US. Because many of the preference category applicants will have had lengthy waiting periods between the approval of the I-130 and the priority date, it is important to determine whether or not he or she is in lawful status and eligible to apply for adjustment of status.

If the beneficiary is not eligible to apply for adjustment of status, either because he or she didn’t enter the US legally, or belongs to a “preference category” and is not currently in lawful status, or is not physically present in the US, he or she applies for permanent residence at the US consulate in his or her home country. This is called “consular processing”. To do this, the I-130 should state an intent to consular process, and then once the priority date is current, the National Visa Center will contact the beneficiary and request all of the supporting documents (the affidavit of support, the actual visa application form, police clearances, etc.). Once are checked for completeness (a process that can take months), they are sent to the appropriate US consulate, and an interview is scheduled. Assuming that the application is approved after the interview, the person then comes to the US and is admitted at the airport as a permanent resident.

People who are planning to consular process should determine before leaving the US whether or not they are subject to any ground of inadmissibility, and if so, whether or not the particular ground of inadmissibility can be waived. If it cannot be waived, then the person will be unable to return to the US. Even if it can be waived, the person will still have to wait outside the US while the waiver is being adjudicated, a process which can take many months. The exception is the waiver for inadmissibility because of unlawful presence in the US, which can be filed and adjudicated in the US on Form I-601A, before the person leaves the country.

The process of immigration to the US through family sponsorship can be relatively simple and straightforward, but it can also be complicated. Each of the applications and forms referenced have their own criteria and list of required supporting documents and filing instructions, to which close attention should be paid. Advice and representation by an immigration attorney experienced in family-based immigration cases can help avoid delays and costly denials.

This article is intended to give a general overview of the process involved in family-based immigration, and should not be considered as a guide, or as a substitute for legal advice.

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