Family-Based Immigration Overview
The Immigration and Nationality Act (INA) is U.S. law that sets a limit on the number of family-based immigrant visas that may be issued to foreign nationals each year. The U.S. Department of State (DOS) is tasked with allocating these immigrant visas, and U.S. Citizenship and Immigration Services (USCIS) plays a major role in determining eligibility for immigrant visas.
The Immigration and Nationality Act (INA) is U.S. law that sets a limit on the number of family-based immigrant visas that may be issued to foreign nationals each year. The U.S. Department of State (DOS) is tasked with allocating these immigrant visas, and U.S. Citizenship and Immigration Services (USCIS) plays are major role in determining eligibility for immigrant visas.
This overview will give you a top-level understanding of how family-based immigration works in the United States and how you may be able to help a foreign family member obtain permanent residence (green card).
Permanent resident status provides a family member with the privilege of living and working in the United States permanently. A person with an immigrant visa or someone that has a green card both were granted permanent resident status. It’s the same thing with different names.
Petitioners and Beneficiaries
Family-based immigration requires the participation of at least two family members, a petitioner and a beneficiary. The petitioner must be a U.S. citizen or lawful permanent resident that wants to sponsor a foreign family member for a green card. The beneficiary is the foreign family member that wants to obtain a green card. In some categories, the beneficiary may have a spouse and children that qualify as derivative beneficiaries.
Immediate Relative and Family Preference Categories
All family-based immigrants fall into one of two major categories, immediate relative or family preference. Spouses, parents, and the unmarried children of U.S. citizens are classified as immediate relatives. There are an unlimited number of immigrant visas available each year for immediate relatives of U.S. citizens. All other qualified relationships are considered family preference categories. The number of family preference immigrant visas is limited. That’s because immigration law puts a numerical cap on the number of green cards that can be issued to family preference categories each year. As a result, there’s a backlog and long wait for many of the family preference categories.
Priority Dates and the Visa Bulletin
When the demand for immigrant visas exceeds the number of visas available (which is virtually always), a backlog forms. There is a waiting list because too many people want to get a green card. In this situation, a person’s place in line is determined with a priority date. The priority date is the date that the I-130 petition is properly filed and accepted (see next section). The U.S. Department of State publishes a monthly visa bulletin that family preference immigrants review to see when they’ve reached the front of the line.
Green Card Application Process
The family-based immigration process generally begins with the petitioner (U.S. citizen or lawful permanent resident) making a request to the U.S. government to allow a family member to immigrate. The petitioner files Form I-130, Petition for Alien Relative, with USCIS. The I-130 petition establishes the existence of a valid family relationship (within the immediate relative or family preference categories). Then, if the case is in a family preference category, a priority date is automatically established. The date that USCIS accepts an I-130 petition is the priority date. (Note: USCIS acceptance of a petition is not the same as an approval.) For more details on the I-130 time line, read what happens after filing Form I-130 Petition for Alien Relative.
Once USCIS approves the I-130 petition and a visa number is available, the foreign family member may apply for a green card. This time frame can vary significantly depending if the foreign family member is in an immediate relative or family preference category. You can read what to expect after the I-130 petition is approved.
There are two basic paths to apply for the green card: consular processing or adjustment of status. Consular processing is a means for applying for an immigrant visa (green card) through the U.S. embassy or consular office in a foreign country. Consular processing is the most common path to obtain a green card. In some cases, an immigrant that is already inside the United States as a temporary visitor (e.g. student, tourist, etc.) may be able to adjust status to permanent resident. Adjustment of status is the process of changing immigration status to permanent residence (green card holder). Adjustment of status is only available to a small group of applicants.
Form I-130, Petition for Alien Relative
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For people with straight-forward cases (no arrests and immigration violations), filing an I-130 petition can be done without a lawyer. Yet, each year, USCIS rejects or denies thousands of applications.
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