Family Immigration and Marriage-Based Green Cards in the United States
Family-based immigration is one of the common ways to obtain a green card and reunite family members in the United States. U.S. citizens and lawful permanent residents (“LPRs” or “green card holders”) may petition for certain relatives, but who they can petition for and how long the process takes depend on the family relationship and the petitioner's immigration status.
Generally speaking, a family-based case has two parts. First, the U.S. citizen or green card holder files a petition to establish the qualifying family relationship. The foreign national family member then completes the process to obtain a green card. Depending on the individual circumstances, this may involve immigrant visa processing abroad or, for some eligible applicants who are already in the United States, adjustment of status. Visa availability, where the family member is living, immigration history, and other individual circumstances can all affect how the case moves forward.
Family Immigration Categories
There are two main groups of family-based immigration: immediate relatives of U.S. citizens and family preference categories. Immediate relatives are not subject to the annual limits that apply to the family preference system. They generally include spouses of U.S. citizens, unmarried children under age 21 of U.S. citizens, and parents of U.S. citizens who are at least 21 years old.
Other qualifying relatives fall under the family preference categories:
F1: unmarried sons and daughters, age 21 or older, of U.S. citizens;
F2A: spouses and children of green card holders;
F2B: unmarried sons and daughters, age 21 or older, of green card holders;
F3: married sons and daughters of U.S. citizens; and
F4: brothers and sisters of U.S. citizens who are at least 21 years old.
These categories matter because U.S. citizens and green card holders do not have the same petitioning options. A green card holder, for example, may petition for a spouse or an unmarried son or daughter, but cannot petition for a parent, married son or daughter, or sibling unless the petitioner later becomes a U.S. citizen. Family preference categories are also limited by the number of immigrant visas available each year, so some family members may need to wait even after the family petition is approved.
Starting the Family Petition
Most family-based cases begin with Form I-130, Petition for Alien Relative, filed with U.S. Citizenship and Immigration Services (“USCIS”). The purpose of the I-130 is to show that a qualifying family relationship exists, and the documents required depend on the relationship involved. A spouse case will generally include a marriage certificate and other documents relating to the marriage, while parent, child, and sibling petitions may rely on birth certificates or other records showing the family connection.
Marriage cases usually require more than simply showing a valid marriage certificate. The couple must show that the marriage is genuine and was not entered into only for immigration purposes. Depending on the couple's circumstances, documents showing that they have built a life together may be helpful.
An approved I-130 does not mean that the family member has received a green card. It also does not, by itself, give the family member legal immigration status, permission to work, or permission to enter the United States. The family member must still complete the next stage of the immigration process.
Completing the Green Card Process
After the family petition is filed or approved, the next step depends on the family member's circumstances, including where the person is living and whether an immigrant visa is available.
Some family members who are already in the United States may be eligible to apply for adjustment of status through Form I-485. Adjustment of status is not available simply because a person is physically present in the United States, and eligibility can depend on how the person entered the country, immigration history, current status, and other factors. A person considering adjustment of status may want to consult with a qualified immigration attorney regarding the individual circumstances before filing.
Immigrant Visa Processing Abroad
A family member who will obtain a green card from outside the United States generally goes through immigrant visa processing, often called consular processing, at a U.S. embassy or consulate. After USCIS approves a family petition intended for immigrant visa processing, USCIS generally sends the case to the National Visa Center (“NVC”). For family preference cases, visa availability affects when the case can move forward toward immigrant visa issuance. The petitioner and family member may need to submit financial sponsorship documents, civil documents, and the DS-260 immigrant visa application.
Once the case is ready, the family member generally attends an immigrant visa interview at a U.S. embassy or consulate. If the immigrant visa is approved, the family member may travel to the United States and become a permanent resident upon admission. Which process applies depends on the facts of the particular case. A family member who is already in the United States should not assume that adjustment of status is available based on physical presence alone. When there is uncertainty, seeking advice from competent immigration counsel before filing is recommended.
Marriage-Based Green Cards
Marriage-based immigration is one of the most common types of family immigration. A U.S. citizen may petition for a foreign national spouse as an immediate relative, while a green card holder may also petition for a spouse under the F2A family preference category. The difference can affect when the foreign spouse is able to move forward with the green card process.
In either situation, the marriage must be legally valid and genuine. USCIS or a consular officer may review the couple's history and documents to determine whether they entered into the marriage in good faith rather than only to obtain an immigration benefit. Evidence will vary from couple to couple, but documents showing a shared residence, finances, insurance, travel, children, family activities, or other parts of the couple's life together may be useful depending on the circumstances.
A foreign national spouse may receive a conditional green card if the couple has been married for less than two years when permanent residence is granted. The conditional residence is generally valid for two years. When filing jointly, the conditional resident and petitioning spouse generally must file Form I-751, Petition to Remove Conditions on Residence, during the 90-day period immediately before the second anniversary of obtaining conditional permanent resident status. Different rules may apply when an individual filing or waiver is available.
Marriage cases can become more complicated when there are prior marriages, earlier immigration filings, questions about how the foreign spouse entered the United States, prior status violations, or other immigration issues. In those circumstances, working with an experienced family immigration attorney may be helpful.
Priority Dates and Waiting for an Immigrant Visa
Immediate relatives of U.S. citizens generally do not have to wait for an immigrant visa under the family preference quota system. Family preference cases work differently. The filing date of the I-130 generally establishes the family member's priority date, which is essentially the person's place in line for an immigrant visa.
The U.S. Department of State publishes a Visa Bulletin each month showing which priority dates may move forward in the different family preference categories. Depending on the category and country, the wait can be substantial, and Visa Bulletin dates may move forward, remain unchanged, or sometimes move backward. For this reason, approval of an I-130 does not necessarily mean that a family member can immediately apply for a green card or immigrant visa.
Families with old or long-pending petitions should keep track of the priority date and Visa Bulletin and make sure USCIS or the NVC has current contact information. They should not rely only on an online case-status message to determine whether the case is ready to move forward.
Children in long-pending cases may also face concerns about turning 21 before immigration is completed. The Child Status Protection Act (“CSPA”) may protect some children from aging out, but the calculation and requirements depend on the particular case. Our CSPA Age Calculation article provides additional information. If a child is approaching age 21, obtaining qualified legal advice promptly may be particularly important because timing can affect the available options.
Affidavit of Support and Financial Sponsorship
Most family-based green card cases also require an Affidavit of Support (Form I-864). Generally speaking, the U.S. citizen or green card holder who filed the family petition must submit the I-864 and show adequate financial ability to sponsor the intending immigrant.
If the petitioner's income is not enough, a joint sponsor may sometimes be used. The petitioner generally still needs to submit his or her own I-864 even when there is a joint sponsor. Signing the I-864 creates important financial responsibilities that may continue after the family member receives a green card, and income, household size, assets, joint sponsors, and other factors can affect whether the financial requirements are met. Our Affidavit of Support (Form I-864) Overview discusses these requirements in more detail.
When a Family Immigration Case Becomes More Complicated
Having a qualifying family relationship does not automatically mean that the foreign national family member is eligible to receive a green card. Prior immigration violations, unlawful presence, a removal order, arrests or criminal history, previous visa applications, prior immigration petitions, or inaccurate information given to the government can affect a case.
Family circumstances can also create additional issues. A prior marriage must have been legally terminated before a later marriage can qualify for immigration benefits, special rules apply to stepchildren, and children may face age-out concerns. In long-pending cases, families may also need to review old USCIS or NVC records to determine what happened to the petition and what action should be taken next.
These circumstances do not necessarily mean that immigration is unavailable; their effect depends on the facts of the individual case. If there is a complicated immigration or family history, it is generally better to identify the issue before filing. Consulting a competent and experienced immigration lawyer can help the family understand whether an issue affects eligibility and what options may be available.
Family Immigration Assistance at Lau Immigration Law
Lau Immigration Law assists individuals and families with family-based immigration matters, including family petitions, immigrant visa and consular processing and, where appropriate, adjustment of status, and related green card matters. Every family's situation is different, and the petitioner's immigration status, family relationship, priority date, visa availability, immigration history, and place of processing can all affect how the case should proceed.
If you are considering filing for a family member or have questions about an existing family petition, we recommend that you consult with a qualified immigration attorney regarding your individual circumstances.
Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.
This article is also available in Traditional Chinese and Simplified Chinese.
Disclaimer: The information on this website is provided for general informational purposes only and is subject to change without notice. It does not, and is not intended to, constitute legal advice. Accessing or using information on this website does not create an attorney-client relationship between you and the Firm, and it is not intended to do so.
