FAMILY BASED PETITIONS

 

U.S. immigration law permits US citizens and lawful permanent residents (green card holders) to petition for certain family members to come live in the United States as lawful permanent residents. The eligibility requirements and length of time it takes to complete the process are different depending on the immigration status of the sponsor and the sponsor’s relationship to the foreign national.

For instance, if the sponsor is a U.S. citizen, the processing of his/her family-based petition will be much faster than if he/she were a green card holder. The reason is because U.S. family-based immigration has multiple categories of eligibility, or preferences, to accommodate diverse family situations.

U.S. citizens who want their relatives to immigrate to the United States can file a Form I-130, Petition for Alien Relative, for their spouse, children and if the U.S. citizen is at least 21 years old, their parents and brothers or sisters.

There is an “immediate relative” category, which include spouses, minor children under 21 years old, and parents of U.S. citizens who are at least 21 years old. The processing of these petitions is much faster because there is no annual visa limit in this category in any given year.

Green Card for an Immediate Relative of a U.S. Citizen

To promote family unity, immigration law allows U.S. citizens to petition for certain qualified relatives to come and live permanently in the United States. Eligible immediate relatives include the U.S. citizen’s:

  • Spouse
  • Unmarried child under the age of 21
  • Parent (if the U.S. citizen is over the age of 21)

Immediate relatives have special immigration priority and do not have to wait in line for a visa number to become available for them to immigrate because there are an unlimited number of visas for their particular categories.

Green Card for Other Family Member of a U.S. Citizen or Lawful Permanent Residents (Not Immediate Relatives)

If your relationship does not qualify you as an immediate relative of a U.S. citizen, then you may be in what is called a “family preference category.”  Eligible relatives include:

  • Unmarried sons or daughters over the age of 21
  • Married child(ren) of any age
  • Brothers and sisters (if the U.S. citizen petitioner is over the age of 21)

 

There are also four “preference” categories, which include unmarried sons or daughters of U.S. citizens, relatives of permanent residents, married sons and daughters of U.S. citizens, and brothers and sisters of U.S. citizens. The processing of these petitions is much slower because these categories are subject to annual visa limits.

Congress has limited the number of relatives who may immigrate under these categories each year so there is usually a waiting period before an immigrant visa number becomes available.

Family Sponsored Preference Categories

First:  (F1) Unmarried Sons and Daughters of U.S. 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, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

Calculating your Priority Date from the Department of State Visa Bulletin

 

Click Here for Current Visa Bulletin[J1] 

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. 

Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.  This represents your priority date.

Family-SponsoredAll Charge-ability Areas Except Those ListedCHINA- mainland bornINDIAMEXICOPHILIPPINES
F108MAR0608MAR0608MAR0601AUG9315FEB99
F2A15DEC1015DEC1015DEC1001DEC1015DEC10
F2B08APR0508APR0508APR0522FEB9315JUL02
F322JUL0222JUL0222JUL0222MAR9301OCT92
F401MAY0101MAY0101MAY0101SEP9615AUG89

**Visa Bulletin from April 2013

 

THE OPERATION OF THE IMMIGRANT

NUMERICAL CONTROL SYSTEM

The Department of State is responsible for administering the provisions of the Immigration and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances. This information sheet explains the operation of the immigrant number allotment and control system.

 

1. HOW THE SYSTEM OPERATES:

 

At the beginning of each month, the Visa Office (VO) receives a report from each consular post

listing totals of documentarily qualified immigrant visa applicants in categories subject to

numerical limitation. Cases are grouped by foreign state chargeability/preference/priority date.

No names are reported. During the first week of each month, this documentarily qualified

demand is tabulated.

 

VO subdivides the annual preference and foreign state limitations specified by the INA into

monthly allotments. The totals of documentarily qualified applicants which have been reported

to VO, are compared each month with the numbers available for the next regular allotment. The

determination of how many numbers are available requires consideration of several of variables,

including: past number use; estimates of future number use and return rates; and estimates of

Citizenship and Immigration Service demand based on cut-off date movements. Once this is

done, the cut-off dates are established and numbers are allocated to reported applicants in order

of their priority dates, the oldest dates first.

 

If there are sufficient numbers in a particular category to satisfy all reported documentarily

qualified demand, the category is considered “Current”. For example: If the monthly allocation

target is 3,000 and we only have demand for 1,000 applicants the category can be “Current”.

Whenever the total of documentarily qualified applicants in a category exceeds the supply of

numbers available for allotment for the particular month, the category is considered to be

“oversubscribed” and a visa availability cut-off date is established. The cut-off date is the

priority date of the first documentarily qualified applicant who could not be accommodated for a

visa number. For example: If the monthly target is 3,000 and we have demand for 8,000

applicants, then we would need to establish a cut-off date so that only 3,000 numbers would be

allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.

 

Only persons with a priority date earlier than a cut-off date are entitled to allotment of a visa

number. The cut-off dates are the 1st, 8th, 15th, and 22nd of a month, since VO groups demand

for numbers under these dates. (Priority dates of the first through seventh of a month are grouped

under the 1st, the eighth through the fourteenth under the 8th, etc.)

 

VO attempts to establish the cut-off dates for the following month on or about the 8th of each

month. The dates are immediately transmitted to consular posts and Citizenship and Immigration

Services (CIS), and also published in the Visa Bulletin and online at the CA Web site

(www.travel.state.gov). Visa allotments for use during that month are transmitted to consular

posts. CIS requests visa allotments for adjustment of status cases only when all other case

processing has been completed.

 

2. DEFINITION OF SOME TERMS:

 

Priority date:

Normally, the date on which the petition to accord the applicant immigrant status was filed.

 

Allotment:

The allocation of an immigrant number to a consular office or to CIS. This number may be used

for visa issuance or adjustment of status.

 

Foreign State Chargeability:

Ordinarily, an immigrant is chargeable for visa purposes to the numerical limitation for the

foreign state or dependent area in which the immigrant’s place of birth is located. Exceptions are

provided for a child (unmarried and under 21 years of age) or spouse accompanying or following

to join a principal to prevent the separation of family members, as well as for an applicant born

in the U.S. or in a foreign state of which neither parent was a native or resident. Alternate

chargeability is desirable when the visa cut-off date for the foreign state of a parent or spouse is

more advantageous than that of the applicant’s foreign state.

 

Documentarily Qualified:

The applicant has obtained all documents specified by the consular officer as sufficient to meet

the formal visa application requirements, and necessary processing procedures of the consular

office have been completed.

 

3. BACKGROUND INFORMATION ON THE SYSTEM AND CLARIFICATION OF

SOME FREQUENTLY MISUNDERSTOOD POINTS:

 

Applicants entitled to immigrant status become documentarily qualified at their own initiative

and convenience. By no means has every applicant with a priority date earlier than a prevailing

cut-off date been processed for final visa action. On the contrary, visa allotments are made only

on the basis of the total applicants reported documentarily qualified each month. Demand for

visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off

dates.

 

If an applicant is reported documentarily qualified but allocation of a visa number is not possible

because of a visa availability cut-off date, the demand is recorded at VO and an allocation is

made as soon as the applicable cut-off date advances beyond the applicant’s priority date. There

is no need for such applicant to be reported a second time.

 

Visa numbers are always allotted for all documentarily qualified applicants with a priority date

before the relevant cut-off date, as long as the case had been reported to VO in time to be

included in the monthly calculation of visa availability. Failure of visa number receipt by the

overseas processing office could mean that the request was not dispatched in time to reach VO

for the monthly allocation cycle, or that information on the request was incomplete or inaccurate

(e.g., incorrect priority date).

 

Allocations to Foreign Service posts outside the regular monthly cycle are possible in emergency

or exceptional cases, but only at the request of the office processing the case. Note that should

retrogression of a cut-off date be announced, VO can honor extraordinary requests for additional

numbers only if the applicant’s priority date is earlier than the retrogressed cut-off date.

Not all numbers allocated are actually used for visa issuance; some are returned to VO and are

reincorporated into the pool of numbers available for later allocation during the fiscal year. The

rate of return of unused numbers may fluctuate from month to month, just as demand may

fluctuate. Lower returns mean fewer numbers available for subsequent reallocation. Fluctuations

can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly

possible near the end of the fiscal year as visa issuance approaches the annual limitations.

 

Per-country limit: The annual per-country limitation of 7% is a cap, which visa issuances to any

single country may not exceed. Applicants compete for visas primarily on a worldwide basis.

The country limitation serves to avoid monopolization of virtually all the annual limitation by

applicants from only a few countries. This limitation is not a quota to which any particular

country is entitled, however. A portion of the numbers provided to the Family Second

preference category are exempt from this per-country cap. The American Competitiveness in the

Twenty-First Century Act (AC21) removed the per-country limit in any calendar quarter in

which overall applicant demand for Employment-based visa numbers is less than the total of

such numbers available.

 

Applicability of Section 202(e): When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical

limitation, that country is considered to be oversubscribed. Oversubscription may require the

establishment of a cut-off date which is earlier than that which applies to a particular visa

category on a worldwide basis. The prorating of numbers for an oversubscribed country follows

the same percentages specified for the division of the worldwide annual limitation among the

preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be laterthan worldwide cut-off dates, if any, for the respective preferences.)

Family Based Petition Process

The U.S. sponsor begins the process by filing a form I-130 (petition for aliens relatives). If the petition is properly filed and eligibility is satisfactorily proven, USCIS will review and approve the petition for further processing. It is worth noting, however, that the approval of the petition by USCIS does not grant any immigration status to the foreign national; it is simply the government’s formal recognition of the parties’ family relationship for purposes of immigration eligibility.

Following approval of the petition, USCIS forwards the file to the Department of State to determine whether an immigrant visa number is immediately available for the foreign national. When an immigrant visa number becomes available, USCIS will notify the foreign national to apply to file form I-485 (adjustment of status) to adjust his/her status if already in the U.S. If living abroad, USCIS will notify the foreign national to return to his/her country to go through consular processing.

The visa availability changes on a monthly basis and the U.S. Department of State publishes a monthly bulletin with the current availabilities.

When the family relationship is one that falls in the “immediate relative” category, and the foreign national is currently present in the United States, the foreign national can filed for adjustment of status at the same time when filing the “petition for aliens relative” and thereby shorten the waiting time for final adjudication of the petition.

When the foreign national is the fiancée of a U.S. citizen sponsor, the sponsor begins the process by filing a form I-129 (Petition for Alien Fiancé). If the fiancé is living abroad, the sponsor must file a petition for a K-1 non-immigrant visa which will allow the fiancé to enter the country to get married to the sponsor. The parties must get married within 90 days of the fiancée’s arrival; otherwise the visa will expire or become invalid. If the fiancée has children, the sponsor must also include them on the form I-129 and they will be granted a K-2 visa to enter the United States along with the fiancée.

Getting a Green Card While Inside the United States

If you are currently in the United States under a lawful admission or parole, and are one of the specified categories of relatives of a U.S. citizen in a preference category, you may be able to become a permanent resident in two steps.

  • Step One – Your U.S. citizen family member (sponsor) must file the Form I-130, Petition for Alien Relative, for you and it must be approved. You must wait for your priority date in your immigrant visa category to become current. Your priority date is the date when the Form I-130 is properly filed (with correct fee and signature) on your behalf by your U.S. citizen relative.
  • Step Two – Once the priority date in your visa category is current, you may file for Adjustment of Status with Form I-485, Application to Register Permanent Residence or Adjust Status.  Adjustment of Status is the process you go through to become a Permanent Resident

Getting a Green Card While Outside the United States

If you are currently outside the United States and are one of the specified categories of relatives of a U.S. citizen in a preference category, you can become a permanent resident through consular processing. Consular processing is when we work with the U.S. Department of State to issue a visa on an approved Form I-130 petition when a visa is available. In this process the Department of State will issue you a visa. If approved, you may then travel on the visa and will officially become a permanent resident when admitted at a U.S. port of entry.

 

Things to Keep in Mind During a Family Based Petition Process

  • The Child Status Protection Act (CSPA). In certain cases, the CSPA may allow you to retain the classification of “child” even if you have reached age 21. Generally, your age is “frozen” as of the date your U.S. citizen parent files Form I-130 for you.
  • Getting Married. If you are the unmarried son or daughter of a U.S. citizen and you get married prior to becoming a permanent resident, then you no longer qualify as an “Unmarried Son or Daughter of a U.S. Citizen” and will convert to the category of “Married Son or Daughter of a U.S. Citizen.” This change in categories may result in a significant delay in your immigrant visa becoming available. You must notify us of any change in your marital status after Form I-130 has been filed for you and prior to becoming a permanent resident or obtaining an immigrant visa.

 

Green Card Through Special Categories of Family

You may be able to become a permanent resident (get a green card) through a special family situation. These adjustment of status programs are limited to individuals who meet particular qualifications and/or apply during certain time frames.
 
For more information on the following categories of family members visit this web pages:

V Nonimmigrant

Green Card for a V Nonimmigrant

The Legal Immigration Family Equity (LIFE) Act provisions of 2000 created the V nonimmigrant category that allow the spouse or child of a permanent resident to live and work in the United States while waiting to obtain immigrant status. To qualify for a V visa, the spouse or child of the permanent resident needs a Form I-130, Petition for Alien Relative, filed on their behalf on or before December 21, 2000 by the permanent resident relative. The spouse or child also must have been waiting for at least 3 years after the form was filed for their immigrant status—either because a visa number was not available or because we had not yet adjudicated the Form I-130 or Form I-485, Application to Register Permanent Residence or Adjust Status. In most cases, V nonimmigrants will eventually adjust status as the spouse or child of a permanent resident when a visa number becomes available and the Form I-130 and Form I-485 have been adjudicated. 

For more information, see Sections 101(a)(15)(V), 214(q) and 245 of the Immigration and Nationality Act (INA) and 8 CFR 214.15, 245 and 248.

Eligibility Criteria
You may be eligible to receive a green card as a V nonimmigrant if you:

  • Are the beneficiary (as the spouse or child) of an immigrant visa petition that was filed by a permanent resident by December 21, 2000
  • Obtained V status either in the United States or abroad and have continuously maintained your status while in the United States
  • Continue to remain eligible to adjust status as the spouse or child of a permanent resident (or U.S. citizen, if your spouse or parent has now naturalized)
  • Have an immigrant visa immediately available
  • Are admissible to the United States

 

For more information or to Schedule a Personal Consultation:

Jeffrey Y. Bennett
Jeffrey Y. Bennett Law

1828 Swift Avenue, Suite 425
North Kansas City, MO 64116
Tel: 816-759-2776 English
Tel. 816-759-2777 Espanol
Fax: 816-759-2769
www.JYBennettLaw.com

Para consultas en español
如有需要,我们可提供中文翻译陪同当面咨询
상담을 위한 한국어 통역사 서비스 요청에 의해 가능합니다
Other languages available upon request

 

Supporting Evidence Family Based Petitions

 

You should submit the following evidence and documentation with your applications:

  • Evidence of marriage
  • Police and court records of any arrests, convictions, probation, etc for any criminal history
  • FBI background check or FOIA request (immigration file records)
  • Recent passport-style photos
  • Biographical information about your spouse, children, parents, including birthdates, places of birth, and immigration status
  • Employment history
  • Address history
  • Identification documents-passport, birth certificate
  • Form I-94 or visa stamp with admission (entry) or parole stamp (if applicable) 
  • Vaccination records
  • Federal income tax records, W-2’s (for last 3 years)
  • Evidence of hardship to US spouse, child, parent
  • $1500-2000 government application filing fees

Medical Examinations
If you received a complete medical exam conducted by either a Panel Physician overseas or a Civil Surgeon within the United States prior to receiving your V visa, you are not required to have another medical exam if your Form I-485 is filed within one year of your medical exam. You will, however, be required to submit the vaccination portion of Form I-693, which will be completed by a Civil Surgeon. See the filing instructions for Form I-693 for further information.

Travel Outside US While Adjustment of Status is Pending

If applying for a green card in the United States then you need to file a separate application to receive permission to travel abroad while your adjustment of status application is pending.  In some cases it is not advised to leave the country until you get an approval.

 

Employment Authorization While Adjustment of Status is Pending

If applying for a green card in the United States then you can receive temporary work authorization if you file all of the required applications in one step rather than a two or three step process.  If you are doing consular processing you may not receive temporary work authorization while your application is pending.

 

For more information or to Schedule a Personal Consulation Contact

Jeffrey Y. Bennett
The Law Office of Jeffrey Y. Bennett, LLC

1828 Swift Avenue, Suite 425
North Kansas City, MO 64116
Tel: 816-759-2776 English
Tel. 816-759-2777 Espanol
Fax: 816-759-2769
www.JYBennettLaw.com

Para consultas en español
如有需要,我们可提供中文翻译陪同当面咨询
상담을 위한 한국어 통역사 서비스 요청에 의해 가능합니다
Other languages available upon request.