Family-Based Green Card

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One of the most-used methods of getting a Green Card is through a member of the family.  The two sets of eligible relationships are as follows:

  • Relatives of U.S. Green Card Holders
  • Relatives of U.S. Citizens

Eligibility

In order to sponsor a family member to immigrate to the United States, the sponsor must meet the following criteria:

  • Be a citizen or lawful permanent resident (Green Card holder) of the U.S. and be able to provide documentation proving that status.
  • Prove the ability to support the relative at 125% above the mandated poverty line with an Affidavit of Support.

A lawful permanent resident (Green Card holder) is a foreign national who has been granted the privilege of permanently living and working in the United States. A lawful permanent resident can file a petition for the following relatives:

  • Husband or wife
  • Minor unmarried children (under the age of 21)
  • Unmarried adult son or daughter of any age

A U.S. Citizen of any age (either by birth or by naturalization) can file a petition for the following relatives:

  • Husband or wife
  • Minor unmarried child (under the age of 21)
  • Unmarried adult son or daughter (21 or older)
  • Married son or daughter of any age

A U.S. citizen who is at least 21 years or older can file a petition for the following relatives:

  • Brother or sister, if the sponsor is at least 21 years old
  • Parent, if the sponsor is at least 21 years old.

Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.

Documents Required for Filing

There are two stages to a family-based petition before the family member, known as the beneficiary, becomes a permanent resident:

1) Form I-130: Petition for Alien Relative
The Permanent Resident or U.S. Citizen (sponsor) completes and submits the I-130 Petition on behalf of the beneficiary.  Proof of the relationship must be included along with other required documentation.  The current USCIS filing fee is $355.00.

2) Form I-485 (Adjustment of Status) or Consular Processing (CP)
The family member will need to determine how they will file for their Green Card.  If the family member is already in the U.S., they can choose to file Adjustment of Status (AOS) or Consular Processing.  If the family member is outside of the U.S., they will need to file through Consular Processing.

Status within the United States

The I-130 petition alone will not provide the beneficiary with status to stay in the U.S.  To remain in the U.S. while waiting for a current Priority Date, the beneficiary must have valid non-immigrant status or through another Green Card application pending.(for example, an employment-based case).  Once the beneficiary has an AOS petition pending with the USCIS, they will be eligible to stay in the U.S. while it is being adjudicated.

Preference Categories

Depending on the category and country of birth, there are backlogs in visa numbers for some of the family-based categories.  The Priority Date (the date the I-130 was received by USCIS for processing) and Visa Bulletin determine when the beneficiary of a family-based applicant can expect their Green Card.

Immediate relatives do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by USCIS. The relatives in the limited family-based categories must wait for an immigrant visa number to become available.

Immediate Relatives of U.S. Citizens

Immediate relatives of US Citizens (including spouses, unmarried children under 21, orphans adopted either abroad or in the US, and parents) currently have no backlog in visa number availability.  Eligible sponsors can file the I-130 and AOS petitions concurrently if the beneficiary is already within the U.S.  If adjusting though Consular Processing in the beneficiary’s home county, the National Visa Center will forward the required documents once the I-130 is approved.  Please note, a child does not have derivative status in an immediate relative (IR) petition.

Limited Family-Based Immigrants

These types of immigrant classifications involve specific family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident. Under immigration law, there are fiscal year numerical limitations on family preference immigrants as explained below.

  • Family First Preference (F1): Unmarried adult sons and daughters of U.S. citizens, and their children, if any. (23,400)
  • Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (21 and older) of lawful permanent residents. (114,200) At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder will be allocated to unmarried sons and daughters.
  • Family Third Preference (F3): Married adult sons and daughters of U.S. citizens, and their spouses and children. (23,400)
  • Family Fourth Preference (F4): Brothers and sisters of United States citizens, and their spouses and children, provided the U.S. citizen sponsors are at least 21 years of age. (65,000)

Children under 21 of immediate relatives being sponsored cannot benefit from permanent resident petitions of their parents.  A separate petition must be filed for each child.  In Category F2 [spouses, minor children, and unmarried adult sons and daughters (21 years and older) of lawful permanent residents], children do benefit from their parent’s petition.

Please note, a child does not have derivative status in an immediate relative (IR) petition. This is different from the family second preference (F2) petition. A child is included in his/her parent's F2 petition. A child is not included in his/her parent's IR petition.

Conditional Permanent Resident Status for Spouses of U.S. Citizens and Permanent Residents

If the beneficiary receives the AOS or CP approval before the two-year anniversary of their marriage, they will receive Conditional Permanent Resident (CPR) status and the CPR card will only be valid for two years.  Within the 90-day period before the CPR card expires, the CPR must complete and file Form I-751, Petition to Remove the Conditions of Residence.  The purpose of this form is for a conditional resident who obtained status through marriage to apply to remove the conditions on his or her residence.

The USCIS will require proof that the marriage was entered in "good faith" and not for the purposes of evading immigration laws.  Any evidence that shows the U.S. Citizen and CPR are still in a legitimate relationship can be submitted. 

Effect of Not filing 

If this petition is not filed, the CPR will automatically lose their permanent resident status as of the second anniversary of the date on which the conditional status was issue.  They will then become removable from the U.S.

Affidavit of Support

While there is no required minimum age to file a family-based petition (unless specified for a particular category), the sponsor must be at least 18 years of age to file the Affidavit of Support, Form I-864.  The affidavit of support is required to show that the sponsor can financially support the relative(s) for whom they are petitioning.

If the Sponsor cannot prove they meet 125% of the poverty guidelines for their household size, a co-sponsor must commit to providing the required financial support.

Medical Examination and Vaccinations

Before becoming a permanent resident, each applicant must have a medical exam completed by a USCIS Certified Civil Surgeon (or Consulate approved doctor if filing through Consular Processing).   The medical will include any vaccinations required by U.S. immigration laws.

When a Legal Permanent Resident Becomes a U.S. Citizen while a Family-Based Petition is Pending

If the I-130 petition was filed for a relative when the Sponsor was a Legal Permanent Resident, the petition must be upgraded once the Sponsor becomes a U.S. Citizen.  This can benefit many family-based petitions, because the retrogression effecting relatives of Legal Permanent Residents is greater than that affecting relatives of U.S. Citizens. A copy of the Sponsor’s Naturalization Certification and the biographical page from the U.S. Passport must be filed as proof in order for the USCIS to upgrade the pending family-based petition.

Children of applicants in Category F2 benefit from their parent's petition.  Once the Sponsor has upgraded the petition from that of a Legal Permanent Resident to that of a U.S. Citizen, these children must file a petition of their own, as they will no longer benefit from a parent’s petition.

Ineligible Relatives

Certain conditions and activities may make a relative ineligible for a U.S Permanent Residency. Examples of these ineligibilities are:

  • Drug trafficking
  • Having HIV/AIDS
  • Overstaying a previous visa
  • Practicing polygamy
  • Advocating the overthrow of the government
  • Submitting fraudulent documents

A relative may also be refused a visa if the Petitioner or Applicant provided a willful misrepresentation of a material fact, or in the event of fraud.

For details provided by USCIS on family-based cases, please review the attachments.

1. For Green Card Holders:  How do I help my relative become a permanent resident?
2. For US Citizens:  How do I help my relative become a permanent resident?

Comments

I recently got US citizenship thru my employer. I have first Nephew in US on student visa. I would like to apply for immigrant Family visa for his mom (my sister). She already has 10 year us visitor visa. Would applying family visa have impact to her son's future H1B petition or her chances of visiting him?

Thank You

Hemant

I am unable to understand the situation. One cannot get citizenship through an employer. Usually, H-1B visa are unaffected by any green card filings.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Dear Sir,

I filed !-130 for my parents in July this year 2016. I am a US citizen. They need to come to US in January and application is still awaiting approval as they are processing cases files as of May 2016.

1. Can they apply for B1/B2 VISA in New delhi to come to US (as their visitor visa expired this december).
2. If yes, once they come will they have to file AOS I-485 as they will now be in US. They were initially being processed through cousular? how does it affect the processing of application when they now come to US. ?

Thanks

For divorce who is intended to submit Form I-130 with his US citizen spouse, is it must to include his previous marriage certificate together with his divorce certificate when submitting application for form I-130?

No, just the divorce decree, I believe. Just follow the form instructions.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

In my country there are two types of marriage, they are Satutory marriage and Customary marriage .A statutory marriage is contracted in a customary court. Some church mariages are considered stautory e.g. The Catholic Church it is recognized by the matrimonial causes case law. A customary marriage is contracted under traditional laws and customs of the brides paternal family not the groom. Marriage under sharia law is considered a customary marriage. My marriage fall under customary marriage in which it can be dissolved by customary court, I want to know if divorce certificate issued by customary court can be used to support my Green Card application with my US citizen spouse ?

You have posted your question for tomorrow's community conference call. I will explain tomorrow.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hello Sir

I am Shobha from India. I am in United states on L1B visa from 2015 and my sister filed petition for my immigration in 2014 May. I want to understand if there is any process of expediting my process of completing the immigration process?

Thanks and Regards
Shobha

I am assuming your sister is Rani. I have just answered her question. There is no expedite in waiting for priority dates, Shobha ji.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.