Immediate Relative Categories
The U.S. immigration system has two major categories of family-based immigrants: immediate relatives and family preference. If a U.S. citizen or permanent resident petitions a foreign family member, the immigrant will fall into one of these two categories. The categories define the type of relationship that the immigrant has with the U.S. sponsor, and to a large extent, the priority that the immigrant will receive in obtaining a green card. The immediate relative categories are the most desirable.
Advantages for Immediate Relative Categories
Why are IR categories so desirable?
The immediate relative categories have special immigration priority. That's because there are an unlimited number of immigrant visas available to immediate relatives. The immigrants in these categories do not have to wait in line for a visa number to become available for them to immigrate. What's more, certain bars to adjustment do not apply to the IR category. This is a significant benefit for an intending immigrant who overstayed a visa or worked in the U.S. without authorization.
On the other hand, family preference categories do have a wait associated with them. There is a limited number of visas for the preference categories. Therefore, waits can last up to 20 years or more in some cases.
Immediate Relative Categories Available
Which relatives can I petition?
There are only a few immediate relative categories available. They are reserved for the spouse, unmarried children and parents of U.S. citizens. The specific categories are:
Spouse of a U.S. citizen
Unmarried child (under 21 years of age) of a U.S. citizen
Orphan adopted abroad by a U.S. citizen
Orphan to be adopted in the United States by a U.S. citizen
Parent of a U.S. citizen (who is at least 21 years old)
If you do not fit one of these categories, you may fit into the family preference categories.
What are the requirements for a green card?
The family-based immigration process generally begins with the U.S. citizen or permanent resident sponsor filing Form I-130, Petition for Alien Relative. The I-130 petition establishes a qualifying relationship and is a request for a visa number.
To immigrate through the immediate relative categories, there are several requirements:
Note: U.S. citizens may also sponsor a foreign fiancé to come to the United States for the purpose of marriage. The U.S. citizen starts this process by filing Form I-129F, Petition for Alien Fiancé. The foreign fiancé eventually enters the U.S. with a non-immigrant K-1 visa.
The I-130 petition is just the beginning of the process. The intending immigrant must apply for a green card via consular processing or adjustment of status.
Green Card Application Process
How do I apply for a green card as an immediate relative?
Once USCIS approves the I-130 petition and a visa number is available, the foreign family member may apply for a green card. There are two basic paths to apply for the green card: consular processing and adjustment of status. Consular processing is a means for applying for an immigrant visa (green card) through the U.S. embassy or consulate in a country outside the United States. Consular processing is the most common path to obtain a green card. In some cases, an immigrant that is already inside the United States in a nonimmigrant status (e.g. F-1 student, B-2 visitor, H-1B worker, 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. Applicants eligible for adjustment status can sometimes file Form I-130 concurrently with the adjustment application (Form I-485).
Inapplicability of Bars to Adjustment
Are immediate relatives exempt from certain violations?
Certain adjustment bars (INA 245 (c)) do not apply to immediate relatives of U.S. citizens. Generally, foreign nationals must be in a lawful status in order to adjust status to permanent resident. In other words, a visa overstay can result in a denial. Likewise, unauthorized employment in the U.S. is a bar to adjustment. If the foreign national has ever engaged in unauthorized employment, whether before or after filing an adjustment application, it can result in a denial.
There is an exception for the immediate relative categories. Applicants in these categories may successfully apply for a green card despite these violations. An adjustment applicant applying as an immediate relative may be eligible to file Form I-485 (adjustment of status application) even if he or she:
- Is now employed or has ever been employed in the United States without authorization;
- Is not in lawful immigration status on the date he or she files the adjustment application;
- Has ever failed to continuously maintain a lawful status since entry into the United States; or
- Has ever violated the terms of his or her nonimmigrant status.
Form I-130, Petition for Alien Relative
Use Form I-130 (Petition for Alien Relative) to start the immigration process for a family member. Each year, USCIS rejects or denies thousands of I-130 petitions. Rejections and denials delay the process and can cost you money. Therefore, it's important to get it right.
* Data based on USCIS Forms Data and Lockbox Rejection Data.
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