FAMILY IMMIGRATION OVERVIEW

Family relationships are the most common way to permanently immigrate to the United States. But not every family relationship qualifies. In each family immigration situation, the key issues are: (1) The status of the sponsoring U.S. relative; and (2) his or her kinship with the sponsored foreign family member.

Who qualifies as a sponsoring U.S. relative?

Only United States Citizens (USC’s) and Lawful Permanent Residents (LPR’s – i.e., greencard holders) can sponsor their foreign family members for permanent immigration to the United States.

Nonimmigrants -- including B-1/B-2 visitors, F-1 academic students, H- temporary workers, L- intracompany transferees, and many other categories -- cannot rely on their NIV (nonimmigrant visa) status alone to sponsor their relatives for permanent immigration to the U.S.. However, their spouses and minor children can join them during their temporary stays in this country. And illegal aliens – those who entered the U.S. unlawfully or whose lawful nonimmigrant status has lapsed – cannot qualify as “eligible sponsors” unless they attain qualifying USC or LPR status.

Who qualifies as a sponsored family member?

Only two categories of foreign family members qualify to immigrate permanently to the U.S. These are immediate relatives and preference immigrants.*

*A third category, derivative or following-to-join immigrants, consists of spouses and minor children of immigrating foreign workers, refugees and asylees, visa lottery winners, and other principal aliens. Analytically, they are not considered part of the family immigration system.

Immediate relatives are limited to spouses, minor children (under age 21) and parents of United States Citizens. These fortunate family members fall outside the family immigrant preference system. This means that there are no numerical visa limitations or waiting periods. They qualify to immigrate “immediately,” subject only to the usual paperwork delays. Immediate relatives also enjoy special protections. If they entered the U.S. lawfully and seek to adjust status (secure their family green cards inside the U.S.), they can do so even if their nonimmigrant status has lapsed or they worked without CIS authorization.

Family preference immigrants fall into four well-established visa categories, as follows:

-- Family 1st Preference: Unmarried Sons and Daughters (over age 21) of USC’s

-- Family 2d Preference: Spouses (Family 2A) and Unmarried Sons and Daughters (Family 2B) of LPR’s

-- Family 3d Preference: Married Sons and Daughters of USC’s

-- Family 4th Preference: Brothers and Sisters of Adult USC’s

The annual visas are limited in all these preference categories. In contrast to immediate relatives, therefore, preference immigrants are subject to visa delays of several years. Normally, they cannot adjust status if their NIV status has lapsed or they have worked illegally in the U.S.

How long are the delays for family preference immigrants?

The “clock starts ticking” when the sponsoring family member files an immigrant visa petition – form I-130 – with the USCIS. Its approval establishes the qualifying foreign family member’s priority date for immigration purposes. But an approved I-130 does not entitle the recipient to an immediate visa. Preference immigrants must then wait until their priority date is reached or “current” – i.e., until an immigrant visa is immediately available to them.

Each month, the U.S. State Department publishes a Visa Bulletin that lists both family and business visa availability. There are always backlogs and resultant long delays for family visas. The delays from high-immigration countries like China, India, Mexico and the Philippines can be even longer. These too are published monthly in the Bulletin. You will find the Bulletin at our links page. Click here.

Many of these family relationships – notably spouses of USC’s and LPR’s, fiancé(e)s of USC’s, and adopted children and orphans of USC’s – are subject to special immigration rules or procedures.

What else is needed to qualify for family-based immigration?

The sponsoring family member must prove that he or she is financially able to support the sponsored relative at no less than 125% of the U.S. Poverty Level Guidelines. This requires filing an I-864 Financial Affidavit form and submitting proof of the requisite income or property ownership.

The sponsored family member must establish that he or she is “not inadmissible” under more than 30 grounds of inadmissibility (alcoholism, prostitution, Nazism, Communism, polygamy, alien smuggling, stowaway, etc., etc.). Two of the most important of these inadmissibility grounds are medical and criminal. Each permanent immigrant to the U.S. – whether family- or work-based -- must undergo a medical exam to establish that he or she is free of communicable diseases. Immigrants over age 14 must also undergo a fingerprint and security check to establish absence of serious criminal convictions. Various waivers apply to many of these inadmissibility problems.

What are the steps to secure family-based immigration?

Provided the necessary relationship exists, family immigration usually begins with filing a Petition for Alien Relative, form I-130, with the USCIS – the United States Citizenship and Immigration Service (CIS) of the Department of Homeland Security (DHS).

If the sponsored family member is outside the U.S., the I-130 is usually filed at one of the CIS’s four Regional Service Centers (RSC’s) in Vermont (VSC), Texas (TSC), Nebraska (NSC) or California (CSC). Once the I-130 is approved and the State Department visa allocated, the member reports to the U.S. consulate in his or her home country for visa issuance. There (s)he must file DS-230 forms and undergo the standard medical and security clearances.

Conversely, if the sponsored family member is inside the U.S. with an approved I-130 and a visa immediately available, (s)he can secure a green card through the local CIS office by filing on I-485 Application to Adjust Status. Other required forms are the G-325A Biographic Information Form and sponsor’s I-864 Affidavit of Support. Optional CIS forms may include the I-764 Application for Work Authorization and I-131 Application for Travel Document. All must be accompanied by the appropriate filing fees. Free downloadable forms, instructions, and current filing fees may be found at the USCIS’s website. Consult our links page.

How can we help you?

Each family immigration situation is unique. Each presents its own special problems and challenges. For example, the procedures and paperwork are different depending on whether the sponsored foreign family member is inside or outside the U.S.; whether (if outside) the U.S. has diplomatic ties with that member's country; whether a co-sponsor's Financial Affidavit is required; and whether medical or other waivers are needed for any immigrating family member.

Our most important task is to carefully examine each situation to advise which family immigration strategies are most promising and which should be avoided. For example, family preference immigrants may be brought to the U.S. more swiftly under a strategy involving nonimmigrant and work-based visas. These may be pursued separately from or together with family immigration. Naturalizing the sponsoring U.S. family member can greatly speed the immigration of his or her nuclear family.

Once the best strategy is determined, we prepare the implementing paperwork timely, accurately, at the correct CIS office, and with the appropriate forms, fees and supporting documentation. As these are constantly changing, completing and filing the paperwork without expert help can prove a time-consuming and costly challenge.

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Please note: The information at this page is general in nature. It does not create an attorney- client relationship. You rely on it at your own risk. We urge you to consult with qualified immigration counsel for help with your own immigration situation.

Copyright 2005-2008 Everett P. Anderson. All rights reserved.