Green Card Through Family Member

Immigrating to the United States can be a time consuming process requiring the successful completion of numerous steps. The last step following approval of the immigrant visa petition requires the alien to file an application for Permanent Resident (PR; "green card") status. A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. Individuals who maintain Permanent Residency for five years (three years for the spouses of U.S. citizens) may be eligible to apply for Naturalization ( U.S. Citizenship) If you want to become a lawful permanent resident based on the fact that you have a relative who is a citizen of the United States or a relative who is a lawful permanent resident, you must go through a multi-step process. These PR applications can be filed either at a U.S. Consulate (normally located in the alien's home country) or with the INS office having jurisdiction over the alien's residence.

The first process is called "Consular Processing" while the latter step is called "Adjustment of Status". Most qualified PR applicants choose to file their PR applications through the INS.

"Grandfathered Aliens": Up until several years ago, aliens who entered without inspection, had failed to maintain their status or otherwise violated their status in the U.S. were not eligible to adjust their status and were required to apply for their PR through a U.S. Consulate. [see section 245 (a)] For the past several years and prior to January 14, 1998, otherwise qualified individuals who had failed to maintain their status or otherwise violated their status were eligible to adjust their status if they paid a penalty fee of $1000 in addition to the normal filing fees, under Section 245(i) of the Immigration and Nationality Act.

As revised in 1997 these "gradfathered aliens" include: (1) beneficiaries of immigrant visa petitions filed with the INS on or before January 14, 1998, and (2) beneficiaries of employment-based petitions filed after January 14, 1998 provided those petitions are based on "properly filed" and approved labor certifications filed on or before January 14, 1998. The service takes the position that in order for a pre-January 15, 1998 immigrant visa petition to grandfather the beneficiary, the filing must have been approvable at the time of filing.

FAMILY BASED PETITIONS.

Family reunification is the leading source of immigration to this country. The United States Congress reflects this family reunification priority in the visa allocation system and in the various forms of relief available to certain aliens based on their family relationship to citizens or to lawful permanent residents of the United States. You can qualify for permanent residency if you have a family member in the United States who is either a citizen or a holder of a green card.

Like the Employment-based categories, both Preference Relatives and Accompanying relatives (derivative status) are affected by quota restrictions. (see, Quota Bulletien) You will need to determine how the quota backlogs will impact on your case prior to filing with the government. "Immediate Relatives" ARE NOT SUBJECT TO QUOTA BACKLOGS. ( A spouse of a U.S. citizen, an unmarried child (under the age of 21) of a U.S. Citizen parent, or a parent of a U.S. citizen child who is over the age of 21 can immigrate immediately if eligible).

PRIORITY DATE OF INDIVIDUAL APPLICANTS : Family-sponsored preference visas will issued to eligible immigrants in the order in which a petition in behalf of each has been filed. The priority date of a preference visa applicant under INA 203(a) or (b) shall be the filing date of the approved petition that accorded preference status. A spouse or child of a principal alien acquired prior to the principal alien's admission shall be entitled to the priority date of the principal alien, whether or not named in the immigrant visa application of the principal alien. A child born of a marriage which existed at the time of a principal alien's admission to the United States is considered to have been acquired prior to the principal alien's admission

Quota Bulletien : This bulletin summarizes the availability of immigrant numbers. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. United States Department of State, Bureau of Consular Affairs VISA BULLETIN, IMMIGRANT NUMBERS.

"Immediate Relatives" ARE NOT SUBJECT TO THE NUMERICAL LIMITATIONS (quota backlogs) OF INA 201. So, a spouse of a U.S. citizen, an unmarried child (under the age of 21) of a U.S. Citizen parent, or a parent of a U.S. citizen child who is over the age of 21 can immigrate immediately if eligible. The INA, however, does not generally accord derivative status for family members of immediate relatives as it does for preference applicants. A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent.

FAMILY-SPONSORED PREFERENCES: Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

Derivative status for family memebers: Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. Whether or not named in the petition, the child of a family-sponsored first, second, third, or fourth preference immigrant or the spouse of a family-sponsored third or fourth preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to derivative status corresponding to the classification and priority date of the beneficiary of the petition..

In the case of a petition according an alien status under INA 203(a)(1) or (3) or status as an unmarried son or daughter under INA 203(a)(2), the petitioner must be a "parent" as defined in INA 101(b)(2) and 22 CFR 40.1. In the case of a petition to accord an alien status under INA 203(a)(4) filed on or after January 1, 1977, the petitioner must be at least twenty-one years of age.

To summarize, there are three basic categories that an individual must fall into to qualify for permanent residency through a relative. Specifically, these are:

  1. Immediate Relatives of U.S. Citizens In order to qualify for permanent residency as an immediate relative, you must be a spouse of a U.S. citizen, an unmarried child (under the age of 21) of a U.S. Citizen parent, or a parent of a U.S. citizen child who is over the age of 21 (note: there are no quota restrictions on this category). 'IMMEDIATE RELATIVES" ARE NOT SUBJECT TO THE NUMERICAL LIMITATIONS OF INA 201. 9 FAM 42.21 .
  2. Preference Relatives of U.S. Citizens or green card holders: In order to qualify under the preference categories, an person must qualify in one of the following four categories:(A) Family-based First Preference: Unmarried people of any age who have a U.S. Citizen parent-- "Unmarried Sons and Daughters of Citizens"; (B) Family-based Second Preference: Spouses and Children of permanent residents, and Unmarried Sons and Daughters of Permanent Residents (unmarried children of any age) who have a parent who holds green card; (C) Family-based Third Preference: Married "Sons and Daughters of Citizens" (D) Family-based Fourth Preference: Brothers and Sisters of Adult Citizens (note: these siblings must be over 21 years of age)
  3. Accompanying relatives of individuals who have established a preference category: If an individual obtains permanent residency through one of the above listed preference categories, he/she can have their spouse and unmarried children under the age of 21 immigrate immediately with them. The INA does not generally accord derivative status for family members of immediate relatives as it does for preference applicants. A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent. [INA 203(d) - treatment of family members for preference family-sponsored immigrants, does not apply to Immigrants classes described in INA 201(b), for Immediate Relatives. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.

    When Marital Status Changes (TL:VISA-173; 11-10-1997)

    a. An approved first preference petition for an unmarried son or daughter automatically converts to third preference when the applicant marries. The applicant retains the priority date of the original petition which at the time of filing accorded first preference status.

    b. If a child beneficiary of an immediate relative petition marries, the petition automatically converts to third preference. The applicant's priority date is the filing date of the petition which originally accorded IR-2 status; or

    c. An approved third preference petition converts to a first preference (or IR-2 if under 21) if the applicant is widowed or divorced. The applicant retains the priority date of the original petition which at the time of filing accorded third preference status.

    When the Petitioner Becomes Naturalized

    a. Upon the naturalization of the petitioner, the approved second preference petition for the spouse automatically converts to status as an immediate relative.

    b. Upon the naturalization of a petitioning parent, an approved second preference petition for a child beneficiary automatically converts to status as an immediate relative. A child who has second preference status derivatively does not benefit from the parent's naturalization, because the child is not the beneficiary of an approved petition and there is no derivative entitlement under the immediate relative provision. Such a child loses second preference status and acquires no other until such time as a petition naming the child as the beneficiary is filed and approved.

    c. If the son and/or daughter who is the named beneficiary of a second preference petition is age 21 or older and the petitioner becomes naturalized, the status accorded by the petition converts to first preference. The applicant retains the priority date of the petition which at the time of filing accorded second preference status.

    When a Child Reaches Majority

    a. When the Child beneficiary of an approved immediate relative petition turns 21 years of age, the petition automatically converts to first preference. The priority date is the filing date of the petition which at the time of filing accorded immediate relative status.

    b. A child accorded 2A status derivatively loses entitlement to such status upon reaching the age of 21. Under INS regulations, however, the petitioner must file a new petition on behalf of the alien to accord second (2B) preference. The new petition shall be accorded the priority date of the initial petition.

    c. A child in the 2A group who reaches 21 years of age is no longer entitled to 2A status. If such child is the beneficiary of an approved petition, the petition automatically provides the basis for 2B status as of the beneficiary's 21st birthday. No further action by INS, the petitioner or the beneficiary is necessary. (The situation is similar to that of an IR-2 applicant who turns 21 prior to visa issuance; that petition automatically converts to provide first preference status.

    Can you explain something about bringing family members to the U.S.? How should the application be made? How long is it likely to take?

    1. Family Petitions: If you are a U.S. citizen, It usually takes 6-12 months for your parents, spouse or child (under 21) to enter if you are a citizen because there is no quota for those categories (known as the "immediate relative" categories) but if you file for your brother it could take 10-12 years! If a GC holder files for a spouse or an unmarried child, it could take 4 to 6 years. For the procedural details, it is advisable to consult your attorney.
    2. Family Based Preference 2B Time Periods: GC Parent filing for adult (over 21) unmarried child is 6/7 years!
    3. Family Petition & H1 w/Dual Intent: Under recent laws (Immigration Act of 1990 as regularly amended), if one has a family based or employment based GC case pending, one can still be eligible for an H1 status. The H1 is one of the best options available since the "doctrine of dual intent" applies to H visas (i.e. you can have both a nonimmigrant & immigrant intention under the H & L visa status under the new law.) As long as you maintain your status, you do not need to leave the country. Memo on Dual Intent for H-1 and L-1 Nonimmigrants. On March 14, 2000, Robert L. Bach, Executive Associate Commissioner, Office of Policy and Planning, issued a memorandum regarding AFM Update: Dual Intent Follow-up Guidance; H-1 and L-1; Pending Applications for Adjustment of Status, validity of nonimmigrant status, and the elimination of the advance parole requirement
    4. Green card holder petitioning for relatives: GC holders can petition only for their spouses and sons/daughters (any age). One must be a citizen to file for a parent, a married son or daughter or a sibling.
    5. Definitions of "Parents", "Child(ren)"(adopted children), Brothers and Sisters. (.pdf file, click on link. You will need Acrobat Reader to view this document. Adobe® Acrobat® Reader is free, and freely distributable, software that lets you view and print Adobe Portable Document Format (PDF) files.
    6. Orphans (.pdf file, click on link)
    7. What is a "Valid Marriage" Under Immigration law? (.pdf file, click on link)
    8. Priority Dates and Counselor Processing: Family-sponsored and employment-based preference visas will issued to eligible immigrants in the order in which a petition in behalf of each has been filed. The priority date of a preference visa applicant under INA 203(a) or (b) shall be the filing date of the approved petition that accorded preference status. A spouse or child of a principal alien acquired prior to the principal alien's admission shall be entitled to the priority date of the principal alien, whether or not named in the immigrant visa application of the principal alien. A child born of a marriage which existed at the time of a principal alien's admission to the United States is considered to have been acquired prior to the principal alien's admission. "Immediate Relatives" ARE NOT SUBJECT TO NUMERICAL LIMITATIONS (quota backlog)
      • Quota Bulletien : This bulletin summarizes the availability of immigrant numbers. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. United States Department of State, Bureau of Consular Affairs VISA BULLETIN, IMMIGRANT NUMBERS. American Consulates and Embassies.
      • An alien shall be classifiable as a family-sponsored immigrant under INA 203(a)(1), (2), (3) or (4) if the consular officer has received from INS a Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien has the relationship to the petitioner indicated in the petition.
      • At the time that the immigrant visa petition is filed, the alien must indicate whether s/he will be processing the application for the visa abroad through a U.S. Consulate or in the U.S. through the INS. If the alien will be processing the visa application through a U.S. Consulate, upon approval of the petition, the INS will notify the National Visa Center (NVC). Once the NVC receives the petition, it will send a Visa Packet III application package to the alien. Packet III consists of a set of forms and instructions of additional documentation that will be required. Upon the Consulate's receipt of the alien's completed forms, it will generate Packet IV and advise the alien of the date/time of his/her immigrant visa interview.

      • Consular officers are authorized to grant to an alien the immediate relative or preference status accorded in a petition approved in the alien's behalf upon receipt from INS of the approved petition or official notification of its approval. The status shall be granted for the period authorized by law or regulation. The approval of a petition by INS does not relieve the alien of the burden of establishing to the satisfaction of the consular officer that the alien is eligible in all respects to receive a visa.

        The consular officer may not issue a visa to an alien as an immediate relative entitled to status under 201(b), a family- sponsored immigrant entitled to status under 203(a)(1)-(4), or employment-based preference immigrant entitled to status under INA 203(b)(1) - (5), unless the officer has received a petition filed and approved in accordance with INA 204 or official notification of such filing and approval.

        The alien will usually have several weeks advance notice of the appointment. U.S. Consulates may require additional documents that are not required when the alien adjusts status in the U.S. Some of the additional documents can include Police Certificates for each country in which the alien has resided for more than 6 months after reaching the age of 16. In addition, Consular Processing requires actual interviews for all aliens and attorneys are not normally allowed to accompany aliens at the interviews. If something goes wrong at the interview or the Consular Official requests additional information, the alien will be "stuck" outside the U.S. until the issues are resolved. (cannot appeal these decisions)


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