Family Based Immigration

Preference Categories in Family-Based Immigration Law

United States law has established categories of preference for bringing family members into the country as Lawful Permanent Residents, Green card holder.  If you are a US Citizen, you are entitled to file a petition for your spouse, children, parents, and siblings.  Lawful Permanent Residents can only apply for their spouse and unmarried children.  How long before your family member can come to the US will depend on their category and what country they were born in. Filing the petition secures a priority date for the applicant.  Once the priority date becomes current according to the Department of State visa bulletin your family member can complete the process of becoming a permanent resident.

Family Petitions: I-130

The first step to sponsoring a family member for a Green Card is to file Form I-130, Petition for Alien Relative, with US Citizenship and Immigration Services (USCIS).  You’ll need to prove that you are a US citizen or permanent resident, how the person you are sponsoring is related to you, and in what manner.  USCIS will assign the person a priority date.

Self Petitions by Abused Spouses and Widows: I-360

An I-360 petition is used to allow people to apply for a Green Card without having a US citizen or Lawful Permanent Resident file on their behalf.  Widows can apply under this provision to protect their ability to gain lawful permanent residency even if their spouse passes away.  Spouses and ex-spouses who have been abused by their US citizen or Lawful Permanent Resident spouse can also petition on their own behalf.  If you fall into the latter category, you do not need to notify your spouse of your application, nor will your spouse be notified by the government.  The purpose of the Act is to allow you to move to a safer place, independently of your abuser.

Fiancé Visas: I-129F

If you are a US citizen, you may bring your fiancé to the United States using Form I-129F fiancé petition for a nonimmigrant visa (K-1).  You and your fiancé must be legally free to marry when you file your petition and afterward, and the marriage must be legally possible according to laws of the US state in which you will be married.  In most cases, you and your fiancé must have met within the two year period prior to filing.  There are exceptions, however, so you should consult your attorney if this does not apply to you.

Adjustment of Status and Consular Processing

If you are a US citizen filing for your spouse, children under 21 or parents once you turn 21, your relative can usually file for their Green Card at the same time you file the petition if they are in the US.  If they live overseas they will need to go to a US consulate to have their visa issued.

If you are only a Lawful Permanent Resident or are a US citizen filing for your over 21 children or siblings there can be a long wait.  Once your Petition is approved you’ll need to check the Visa Bulletin regularly to know when your family member can apply.

Deciding whether to process your application in the US or at a consulate overseas is a complicated decision.  Someone with an approved visa petition should never leave the US for processing without first speaking to a lawyer to make sure all their rights are protected.

Waivers of Admissibility

Some individuals with negative immigration or criminal history must apply for a waiver of inadmissibility before they can obtain a Green Card. It’s crucial to consult an immigration attorney prior to starting the petition process to assess possible inadmissibility.  If you have been deemed inadmissible to the US, call us today about obtaining a waiver.  This requires Form I-601 if the denial was based on unlawful presence, prior criminal activity, or fraud or misrepresentation, and From I-212 for a waiver of a prior deportation.