Family Based Immigration

Family reunification and unity is a priority for many individuals trying to navigate the immigration system. U.S. immigration law allows for U.S. citizens and lawful permanent residents to petition certain family members for lawful permanent residence or their “green card.” Under family-based immigration, family members will be classified as Immediate Relatives, or through the Family Preference System.

Immediate Relatives include:

• Spouses of U.S. citizens;
• Unmarried children under the age of 21 of U.S. citizens; and
• Parents of U.S. citizens over the age of 21

The Family Preference System allows for the following persons to immigrate:

• Unmarried children of U.S. citizens over the age of 21;
• Spouses of Lawful Permanent Residents;
• Unmarried children under the age of 21 of Lawful Permanent Residents;
• Married children of U.S. citizens; and
• Siblings of U.S. citizens (if the petitioning U.S. citizen is over 21 years of age).

U.S. immigration law creates a quota system with numerical limits on the number of Family Preference Relatives who can enter the United States each year. Under this system, Immediate Relatives are exempt from a quota system. The U.S. Department of State Visa Bulletin is published each month and contains the priority dates for preference categories. Applications with a priority date earlier than the listed date on the visa bulletin are currently being processed for immigrant visas or lawful permanent residence.

The first step in family-based immigration is for the sponsoring U.S. citizen or lawful permanent resident family member to file an I-130 petition for their foreign national family member with U.S. Citizenship and Immigration Services (USCIS). The purpose of the I-130 petition is to establish the qualifying family relationship between the U.S. citizen or lawful permanent resident and foreign national they are seeking to petition. The process by which the foreign national family member obtains lawful permanent residence varies based on whether they are classified as an Immediate Relative or a Family Preference Relative, where the foreign national family member is present in the United States, and whether they entered the country with a valid visa if they are present in the United States, and several other factors. Taking those factors into consideration, the next step for the foreign national family member will be to apply for adjustment of status here in the United States with U.S. Citizenship & Immigration Services, or apply for consular processing, which is applying for an immigrant visa or lawful permanent residence at a U.S. consulate abroad through the U.S. Department of State.

A K-1 visa is a visa that allows for foreign nationals living abroad who are engaged to a U.S. citizen to travel to the United States for the purpose of marrying his or her U.S. citizen fiancé. The first step is for the U.S. citizen to file an I-129F petition with U.S. Citizenship & Immigration Services on behalf of his or her fiancé. Additional proof of the qualifying relationship, including evidence that the couple has met in person at least once within the past two years, and intent to marry upon the foreign national fiancé’s travel to the United States should also be submitted in support of the request.

Once the I-129F is approved, USCIS will forward the approved petition to the U.S. consulate where the foreign national fiancé resides. The foreign national then must apply for the K-1 visa at the consular post abroad. This application includes a required medical exam and evidence of financial documentation to evidence that the foreign national fiancé will not become dependent on the U.S. government upon entry. Once the K-1 visa is approved and the foreign national fiancé travels to the United States, he or she will have ninety (90) days upon entry to marry the petitioning U.S. citizen. Once married, the foreign national may submit an I-485 and apply for adjustment of status to lawful permanent resident.

The K-1 visa also allows the U.S. citizen petitioner to file petitions for any unmarried children under 21 of their foreign national fiancé.

An applicant who receives their lawful permanent residency based on marriage, and who has been married to their petitioning spouse for less than two years at the time of approval, will receive conditional permanent residency. Conditional permanent residents have the same rights as lawful permanent residents; however, their initial resident card will only be valid for two (2) years. Within ninety (90) days prior to the expiration of the conditional permanent resident card, the conditional permanent resident will need to file an I-751 petition to remove the conditions on their residence, and evidence that the marriage was bona fide. Failure to file within the ninety (90) period will result in permanent residence being terminated and the foreign national may be placed in removal proceedings. Generally, the I-751 is filed jointly with the petitioning spouse; however, there are exceptions to joint filing. Exceptions or a waiver of the joint filing requirement are provided when the foreign national was abused or subjected to extreme cruelty by the U.S. citizen spouse, the marriage was bona fide but ended in divorce, the marriage was bona fide but the conditional resident is unable to submit a joint petition and denial of the I-751 would result in extreme hardship. A foreign national filing an I-751 based on an exception or waiver of the joint filing requirement may do so after the ninety (90) day period. Once the I-751 petition is approved, the foreign national will be issued a ten (10) year “green card.”

Individuals may be found ineligible for lawful permanent residence, visas, or otherwise inadmissible to the United States. If this is the case, they may be eligible to file a waiver for certain grounds of inadmissibility. Certain waivers of inadmissibility can be filed and may allow individuals who have been denied admission to the United States to gain admission. Some common grounds of inadmissibility are unlawful presence in the United States, certain criminal convictions, misrepresenting facts or providing false documents for an immigration benefit, and previous immigration violations. Waivers of inadmissibility generally require proving that a qualifying U.S. citizen or lawful permanent resident family member will suffer extreme hardship if the applicant is not admitted to the United States. Grounds of inadmissibility should be evaluated thoroughly and on a case by case basis to determine if the individual qualifies for a waiver of inadmissibility and if so, which waiver is appropriate.