Family-Based Immigrant Visa

Details: Published: Thursday, 24 January 2013 10:49

Congress, by conferring permanent residence eligibility upon certain family-based groups, has properly emphasized the importance of family unification in American immigration law. This information section is designed to give the reader a general understanding of the system by which family-based immigrant visas are allocated.

The following is a brief description of the groups that are eligible for permanent residency under this designation:

1) Immediate Relatives of United States Citizens - Illustrated by the fact that no annual limit has been placed on the number of these individuals who can become lawful permanent residents each year, this group is "preferred" above all others. It includes:

Spouses - It is important to understand that a "sham" marriage to a U.S. citizen, meaning one entered into for the purpose of facilitating immigration, does not qualify for immigration benefits. While only the couple will know the true intent behind the marriage, certain situations are sure to arouse the suspicion of the INS. These include the couple having just met, not ever living together, coming from extremely different backgrounds, the lack of a common language, and so on. On the other hand, items tending to prove the existence of a bona fide marriage are joint property ownership, sharing a residence, commingling of finances, children born of the marriage, and so on.

Another requirement is that the marriage to the U.S. citizen must itself be valid, meaning that the husband and wife were each legally able to get married. For example, if either person had been previously married, a legally valid divorce must have since taken place. The actual ceremony must also, in the jurisdiction where it was performed, be legally recognized.

Finally, the marriage must actually still exist; a former marriage to a U.S. citizen will not qualify for immigration benefits. While a marriage can remain in existence despite the physical separation of the couple, more serious arrangements, such as the execution of a legal separation agreement, do tend to generate substantial obstacles to immigration. It is also important to remember that if the marriage took place within the two years preceding the conferment of permanent residence, it is done so on a "conditional" basis only. This means that if within two years after permanent resident status is obtained, the marriage terminates or is discovered to have been a "sham," the grant of permanent residence will be revoked. In every other respect, the "conditional" permanent resident is identical to all others. He or she may work, travel, and enjoy the full measure of benefits available to all lawful permanent residents.
Children - In order to be eligible for immigration in this category, the child of a U.S. citizen must be unmarried, and under the age of 21 years. Within the context of American immigration law, the word "child" is very specifically defined. This definition includes children born both in and out of wedlock, and for those born out of wedlock, qualifications for immigration differ depending on which parent is sponsoring the child.

Specifically, for children born in wedlock, the relationship to either the father or the mother will suffice to qualify the child for immigration. For children born out of wedlock, the relationship to the mother will qualify; however, the relationship to the father will qualify only in one of two circumstances. These are (1) that evidence exists, such as the father financially supporting or living with the child, which clearly demonstrates a parent/child relationship, or (2) that the father, while in legal custody of the child and before the child's 18th birthday, has "legitimized" the child in the manner prescribed by law.

Stepchildren, adopted children, and "eligible orphans" are also eligible for immigration in certain instances.
(c) Parents - Parents of a U.S. citizen are eligible for immigration, provided that the citizen-child is at least 21 years of age. Additionally, the citizen must be the "child" of the parent seeking permanent residence, as defined by American immigration law and described above.

The advantages to seeking permanent residence as an immediate relative of a U.S. citizen are substantial. Because an unlimited number of these visas can be issued each year, qualified applicants are never forced to spend time on a waiting list. So if these immediate relatives are already in the U.S. and are otherwise qualified, they can always file for adjustment of status. However, because many spouses of U.S. citizens are subject to a period of "conditional" residence, as described above, these individuals may prefer to elect an employment-based path to permanent residence. Finally, it should be noted that family members of an immediate relative are not eligible to immigrate unless each independently qualifies as an immediate relative.

2) Other Preference Categories for Family Members of Citizens or Residents - These groups have also been given eligibility to immigrate to the U.S., but are not "preferred" like immediate relatives of U.S. citizens. Because the number of immigrant visas available to these groups is subject to a numeric annual limit, they have been separated into preferences. As such, the higher the preference category, the shorter the wait for an available visa. These categories, in order of preference, are as follows:

Unmarried Sons and Daughters of Citizens - The reason these individuals do not qualify under the immediate relative category is because they are over the age of 21 years. In order to qualify here, each son or daughter must have met the legal definition of "child" when he or she was under the age of 21. This preference category is given 23,400 visas each year, plus any that are unused by the fourth preference.
Spouses and Unmarried Sons and Daughters of Permanent Residents - This preference category is subdivided into two groups - the immediate family members (spouses and children) of permanent residents, and unmarried adult sons and daughters of permanent residents. The entire category is given 114,200 visas annually, plus any unused visas from the first preference category, with the vast majority going to the immediate family member subgroup. Please remember that the spouse of a permanent resident, if the marriage took place within the two years preceding the grant of permanent residence status, is given such residence on a "conditional" basis. Again, if after two years the marriage ends or is found to have been a "sham," the residence will be terminated.
Married Sons and Daughters of U.S. Citizens - These individuals do not qualify as immediate relatives for immigration purposes because they are married, and perhaps, also over the age of 21. This group receives 23,400 visas each year, plus any visas unused by the first two preference categories. As always, each son or daughter must have, at some earlier point, met the definition of "child" for immigration law purposes.
Brothers and Sisters of U.S. Citizens - Brothers and sisters of a U.S. citizen qualify for immigration, but only if the citizen is 21 years of age or older. To qualify under this designation, the sponsoring citizen and his or her sibling must both meet (or have met) the definition of "child" in relation to the same parent.

The immediate family members of immigrants qualifying under each of these four preference categories are also permitted to concurrently immigrate, as well.

The documentation needed for a family-based petition for permanent residence is the same for immediate relative and family preference applicants. In short, the following is required:

INS Form I-130 (Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa),
Supporting Documentation that shows that the petitioner is a U.S. citizen or lawful permanent resident, and a qualifying relationship between the petitioner and the beneficiary (the intending immigrant),
Form G-325A (Biographic Information Form) and Two Color Photographs for both spouses, if the qualifying relationship is marital under either the immediate relative or second family preference category,
The INS filing fee of $110.00, and
Form G-28 (Notice of Appearance for the Attorney or Representative).