The most common way by which a person can become a lawful permanent resident of the United States is through a family relationship. The filing of a visa petition by a United States Citizen or Lawful Permanent Resident relative (the Petitioner) is the first step in this process. Depending upon the relationship of the family member who is being sponsored (the Beneficiary), he or she will qualify either as an "immediate relative" or in a "preference" category. The classification is very important in determining how long the process will take.

I. Immediate Relatives include:

• Spouse of United States Citizens (and in limited circumstances, a widow or widower of a United States Citizen)
• Unmarried children under 21 years of age (step-children and adopted children may often qualify)
• Parents of United States Citizens

II. Preference categories:

• 1st    » Unmarried sons and daughters (21 or older) of U.S. Citizens

• 2nd   » [2A] Spouses and children (under 21) of a Lawful Permanent Resident
            » [2B] Unmarried sons and daughters (21 or older) of a Lawful Permanent Resident

• 3rd    » Married sons and daughters (21 or older) of a U.S. Citizen

• 4th    » Brothers and sisters of a U.S. Citizen

[Notice that a Lawful Permanent Resident (green card holder) cannot petition for his or her parents or married son or daughter]

Visas are always available for immediate relatives, and so there is no wait for a visa to become current. Persons who fall in the family preference categories usually will have to endure a wait for a visa to become available as there are only a limited number of visas per preference category and per country. A "Visa Bulletin" is published each month by the State Department which keeps track of visa availability by preference category and country. The general rule is that a person's country of visa chargeability is their country of birth, however a different country may be used in certain circumstances.

The I-130 Petition:
The first step in the process to sponsor a qualifying family member is for the U.S. citizen or lawful permanent resident to file a visa petition and supporting documentation with USCIS. This is done on Form I-130. The Petitioner must show proof of U.S. Citizenship or Lawful Permanent Resident status and evidence documenting the qualifying relationship.

As previously mentioned, visas are always available for immediate relatives. For those persons in the family preference categories, the date of the filing of the petition establishes the "priority date", which is the Beneficiary's "place in the line" for a visa. The priority date is compared each month to the date which appears on the State Department Visa Bulletin in each preference category. When a Beneficiary's priority date is current, he or she becomes eligible to apply for permanent residency.

The I-485 Application for Permanent Residency:
If the relative being sponsored (Beneficiary) qualifies as an immediate relative and is present in the U.S., the relative petition (Form I-130) and Adjustment of Status application (Form I-485) can be filed together, if the Beneficiary is eligible to adjust status in the U.S. The Beneficiary can also file for work authorization and, if eligible, a travel permit while the case is pending. In special cases, a Preference category Beneficiary who is in the Unites States and has a current priority date may also file an Adjustment of Status application by paying a USCIS "penalty" fee.

Consular Processing:
If the Beneficiary is residing abroad, once the relative petition (I-130) is approved by the USCIS, the case is sent to the National Visa Center. When the Beneficiary is either an immediate relative or has a current priority date pursuant to the Visa Bulletin Preference system, the National Visa Center will coordinate the collection of further information and documentation for the scheduling of an immigrant visa interview with the U.S. embassy or consulate where the Beneficiary permanently resides.

Marriages less than two years old at the time of interview:
If the family petition is based on a marriage of less than two years at the time of the interview, the Beneficiary spouse will be granted Conditional Permanent Resident status. The Beneficiary must file a petition to remove the conditions just prior to the two-year anniversary of being granted such status.

Below are links to detailed information provided by the U.S. Department of State and U.S. Citizenship and Immigration Services.

Quan, Burdette & Perez is not responsible for the content of the articles. Changes in immigration laws and policies occur frequently and the articles may not be immediately updated.

Pleased be advised that interpretation of general information should not take the place of legal advice provided by an experienced immigration lawyer familiar with the specifics of your case.