Introduction to Family Based Immigration
One method of obtaining lawful permanent residency is through a qualifying relative who is either a United States citizen or a lawful permanent resident. United States citizens and lawful permanent residents can help their qualifying foreign relatives in petitioning for lawful permanent residency in the United States and eventually even citizenship. There are different categories family-based immigration. The category a foreign national falls into depend upon two factors:
1. whether the petitioning relative is a U.S. citizen or lawful permanent resident;
2. the foreign national relationship to the petitioning relative.
There are two categories of unlimited family-based immigration: immediate relatives of United States citizens and permanent residents. An immediate relative can be a spouse of a United States citizen, widow of a United States citizen, unmarried child under the age of 21 of a United States citizen, or a parent of an adult United States citizen. Returning residents are immigrants who previously resided in the United States with lawful permanent resident status and are returning to live in the United States after residing abroad for more than one year.
There are four preference categories for limited family-based immigration. The first preference category consists of unmarried children of United States citizens who are over the age of 21. The second preference is divided into “2A” and “2B”. Spouses of lawful permanent residents as well as their unmarried children under the age of 21 fall into the “2A” category whereas unmarried sons and daughters of lawful permanent residents who are over the age of 21 fall into “2B” category. The third preference consists of married children of United States citizens. The fourth preference category consists of siblings of adult United States citizens.
Procedure in General
For an application through either the immediate relative category or one of the preference categories, the United States citizen or lawful permanent resident should first file an “I-130 Petition” for Alien Relative with the Bureau of U.S. Citizenship & Immigration Services. This form should be accompanied by the proof of the petitioner's United States immigration status and proof of the relationship between the petitioner and beneficiary. The petitioning United States citizen or lawful permanent resident must prove he or she can support his or her relative 125% above the poverty line. If the United States citizen or lawful permanent resident does not meet this financial criterion, then he or she will need a joint sponsor or their assets will be taken into account.
Upon approval of the “I-130 Petition” for Alien Relative, the Department of State will determine if an immigrant visa number is available for the beneficiary. Immigrant visas are always available for persons in the immediate relative category. However, immigrants in the preference categories may apply for an immigrant visa overseas once a visa number is available.
If the beneficiary of the I-130 Petition for Alien Relative is in the United States, they may be able to file an I-485 Application to Register Permanent Resident or Adjust Status with the Bureau of U.S. Citizenship & Immigration Services.
If an applicant is outside of the USA and seeking adjudication of his or her Immigrant Visa petition at one of the U.S. Consulates, in most circumstances, the petition will be referred to the U.S. Consulate in the country of the beneficiary's citizenship or permanent residence at the time when the I-130 was approved. Important to mention that in case of a preference as opposed to immediate relative petition, the consulate will not adjudicate the petition until an immigrant visa becomes immediately available for the beneficiary. An immigrant visa becomes immediately available when the priority date indicated on the I-130 Approval Notice (USCIS form I-797) becomes current. Interested parties may check online whether their priority date is current by visiting the U.S. Department of State Visa Bulletin website.
Adjustment of Status
If the beneficiary of the approved I-130 immigrant petition is in the United States and seeks Adjustment of Status to that of the Legal Permanent Resident, the beneficiary may only do so when his or her petition's priority becomes current and while the beneficiary is still in a valid nonimmigrant status in the USA. In most cases beneficiary's failure to maintain a valid nonimmigrant status while in the USA renders him or her ineligible to seek Adjustment of Status in the USA. Again, this rule is not applicable to immediate relatives of the U.S. Citizens, provided that they have entered the USA using legitimate eligible U.S. nonimmigrant visa.