In some cases, family members of U.S. citizens and permanent residents are permitted to apply for U.S. permanent resident status (also known as petitioning for a green card or applying for an immigrant visa). Here is some general information regarding family-based green cards that we hope you’ll find helpful. For additional information regarding family-based green cards, please contact us for a consultation with an immigration lawyer. Edgecomb Law LLC has a nationwide immigration practice, which means that the firm works with immigration clients in the Boston area as well as throughout the United States and abroad.
General Application Process
To begin the process of applying for a family-based green card, the candidate’s relative who is a US citizen or permanent resident generally must file Form I-130, Petition for Alien Relative, on the candidate’s behalf. Self-petitioning for family-based green cards is generally not permitted (with some very limited exceptions). Once Form I-130 has been accepted, candidates living in the US must submit Form I-485, Application to Register Permanent Residence or Adjust Status (in some cases Form I-485 can be filed concurrently with Form I-130). If the candidate is outside the US, she can obtain a visa through consular processing once the I-130 has been accepted and a visa is available; the candidate will become a US permanent resident upon travelling to the US and being admitted at a port of entry.
Priority Dates and Visa Numbers
An important consideration to keep in mind when applying for permanent resident status is that the number of green cards that are available each year is set by federal law. There are several different categories of family-based green cards, and while some categories of visas may be issued to an unlimited number of candidates, other categories of visas are limited in the number of green cards that can be issued each year.
For some types of immigrant visas, there is more demand for the visa in a given year than there is a supply of visas. When this happens, a waiting list forms for individuals from a particular country who wish to obtain a visa through that particular category. Visas are distributed to individuals in the waiting list according to the petitioner's priority date - which is the date that Form I-130, Petition for Alien Relative, was filed on the candidate’s behalf.
Categories of Family-Based Green Cards
It is helpful to separate family-based green cards into four categories: (1) green cards available to immediate family members of US citizens; (2) green cards available to other family members of US citizens and permanent residents who fit into “preference categories”; and (3) family-based green cards available to members of “special categories,” as designated by federal law. Each category will be discussed in more detail below.
Green Cards for Immediate Relatives of U.S. Citizens
Immediate relatives of U.S. citizens are generally able to obtain a green card as soon as their petition has been approved, as there is an unlimited number of visas allotted to immediate relatives of US citizens each year. For purposes of applying for permanent resident status, immediate relatives are defined as (1) spouses; (2) unmarried children under the age of 21; (3) parents (if the petitioning US citizen is over the age of 21); and (4) orphans adopted abroad or orphans to be adopted in the US by US citizens. In most cases, petitioners’ children’s ages are treated as being “frozen” as of the date Form I-130, Petition for Alien Relative, was filed on the child’s behalf. However, if a child of a U.S. citizen gets married after Form I-130 has been filed, she will be moved to a different category of family-based green card candidates (F3 - married son or daughter of a US citizen).
It is important to keep in mind that for some candidates, it is preferable to apply through a family preference category (discussed below) rather than as an immediate relative of a U.S. citizen. Candidates who seek permanent resident status through family preference categories are permitted to bring their spouses and children as “derivative beneficiaries.” However, immediate relative candidates are not permitted to bring derivative beneficiaries, and must therefore wait to bring their spouses and children to the U.S. in many instances.
Family Preference Green Cards for Other Relatives of U.S. Citizens and Permanent Residents
Family members of U.S. citizens who are not considered “immediate relatives” may qualify for permanent resident status under some circumstances. Some family members of U.S. permanent residents may qualify for family-based permanent resident status as well. Qualifying relatives of U.S. permanent residents and family members of U.S. citizens who do not qualify as “immediate relatives” are divided into “preference categories.” Each preference category has an annual limit of visas available to qualifying candidates. When the annual cap is reached, an immigrant wait begins and candidates are issued visas according to their priority dates. A candidate’s priority date is the date when Form I-130, Petition for Alien Relative, was first filed on her behalf. In some cases, it can take years for candidates to receive
Family preference green cards are divided into four categories. The first family preference category (F1) includes unmarried sons and daughters of U.S. citizens, and their minor children, if any. The second family preference category (F2) includes spouses, unmarried minor children, and unmarried sons and daughters over age 21 of US permanent residents (77% of F2 green cards are allotted to spouses and unmarried minor children of permanent residents; the rest are allotted to unmarried children over age 21). The third family preference category (F3) includes married sons and daughters of U.S. citizens, and their children. The fourth family preference category (F4) includes brothers and sisters of US citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. Grandparents, aunts, uncles, in-laws and cousins cannot sponsor a relative for immigration.
Green Cards through Special Categories of Family
In addition to family members of U.S. citizens and permanent residents, there are a handful of additional “special categories” of candidates who may qualify for family-based permanent resident status in the US. First, widows and widowers who were married to U.S. citizens at the time of the citizen’s death may apply for a green card so long as they are not remarried and are otherwise admissible to the U.S., subject to certain time restrictions. Second, qualifying individuals who are present in the U.S. on a valid K nonimmigrant visa for spouses and fiances of U.S. citizens may adjust their status to permanent resident status once they have been married (along with qualifying minor children accompanying them on K visas). Third, qualifying individuals born to foreign diplomats in the U.S. may be considered permanent residents and receive U.S. permanent resident status by adjusting their status within the US. Fourth, LIFE Act beneficiaries holding V nonimmigrant visas and awaiting permanent resident status may adjust their status and obtain a green card once a visa number becomes available to them. Finally, battered spouses, children and parents of battered children may self-petition for permanent resident status without the knowledge of the US citizen or permanent resident abuser assuming all eligibility requirements are met.
To speak with an immigration attorney about obtaining family-based permanent resident status, please feel free to contact us.