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Immigrant Visa: Family

Immigrant Visa: Family

Marriage & Other Family-Based Applications

In the Family-Based application process, you – the alien – are referred to as the “beneficiary,” and your relative is referred to as the “sponsor.” And, more importantly, depending upon your relationship to your sponsor, you will fall into one of five categories eligible for Legal Permanent Residency, each with their own particular waiting period and requirements.

Marriage to a U.S. Citizen – Immediate Relative Category

This category is an exception to the four preference categories discussed below and is not subject to any waiting period. Marrying a U.S. citizen is the only thing you can do to remedy an overstay of your visa, not requiring you to leave the country to be eligible for relief.

Requirements: Marriage to a U.S. Citizen (while both residing in the U.S.) You can be married for any length of time prior to the application, but if you have been married for less than 2 years when your application is approved by USCIS, you will be granted what is called “conditional approval,” which requires that after one year and nine months, you will be required to return to the USCIS and submit to further scrutiny to ensure that the marriage is real, and not entered for the purpose of obtaining LPR status, otherwise known as a I-751 Petition to Remove the Conditions of Residence.

Further, you must have entered the U.S. legally or have been paroled. For instance, if you entered illegally, i.e., you entered without being inspected by a Customs and Border officer by sneaking in over a border – you are considered to have “entered without inspection” (“EWI”). But, if you entered legally, but only overstayed your visa, i.e., as a visitor or student, and stayed on for a few more years than you should have, you will not be barred from being sponsored as a legal permanent resident by your spouse even though you overstayed your visa (but, you cannot leave now, except in certain circumstances, otherwise you will be subject to either the 3 or 10 year bars to returning).

For those who wish to leave the US while the application is pending, you will need to file for Advance Parole. But note, if you have overstayed your visa by more than 180 days you will be unable to return, despite having obtained advance parole.

For those who are EWI, there is an exception making you eligible for adjustment, but a family member or employer must have submitted a petition/application on your behalf on or before April 30, 2001 in order to qualify. Thus, if you entered illegally and did not have a petition/application pending on or before April 30, 2001, you will not qualify for Legal Permanent Residency based upon your marriage to a U.S. citizen. Your only choice, if you are serious about obtaining LPR status, despite an illegal entry, you would need to seek consular processing which requires that you leave the United States and re-enter on a visa (see Consular Processing).

If you are in a removal proceeding, however, despite having entered illegally, you may qualify, however, for a waiver, or “cancellation of removal” in which the Immigration Judge can grant LPR status. See, Waivers.

Forms Required: You need to submit an I-130 (Petition for Alien Relative) along with a I-485 (Adjustment of Status Application), a G-325A (Biographic Data form), an I-864 (Affidavit of Support), and an I-765 (Employment Authorization), along with the filing fees. Employment authorization is usually granted within three to four months of submission of the application. Besides these governmental forms, you and your sponsor will be required to submit your own supporting documentation.

Immediate Relatives – Parents & Children

Not subject to a waiting period for processing. (A) Parents. Parents can be sponsored by their U.S. Citizen children if the child is over the age of 21. Overstay rules are the same as for spouses. (B) Children. Children of U.S. citizen parents can be sponsored if the child is under the age of 21. Overstay rules are the same as for spouses. See, Petition/Application & Document Requirements.

Preference Categories

First Preference – Unmarried people who have at least one U.S. citizen parent.

Second Preference – Sponsored by Legal Permanent Residents. (2A) Spouses and children under 21 years old of Legal Permanent Residents; (2B) Unmarried sons and daughters of Legal Permanent Residents who are at least 21 years old.

Third Preference – Married people, any age, who have at least one U.S. citizen parent.

Fourth Preference – Sisters and brothers of U.S. citizens, where the U.S. citizen is 21 years or older.

If you are in one of these preference categories, then there is a quota that applies, requiring you to abide by a “priority date.” These priority dates are published by the U.S. Department of State. See, Priority Dates. For example, if your priority date is May, 2001, and you apply now, then you know that your wait will equal the time from 2001 to the present year, e.g., if the priority date is 2001, and this year is 2011, then you can expect a wait of 10 years, if all things stay equal. It is only intended to be an estimate.

Regarding “accompanying relatives,” i.e., spouses, brothers, sisters of a person being sponsored. The concept of accompanying relatives applies only to the Preference Categories, not the Immediate Relative category. This means that a U.S. citizen cannot sponsor more than one person, per application, as an Immediate Relative. For example, if you have a U.S. citizen child who wishes to sponsor you and your wife, who is the natural mother to your child. First, in this instance, your U.S. citizen child will be required to file two separate applications, one for you and the other for your wife. You and your are wife immediate relatives to your child, and because your U.S. citizen child sponsors you, it does not mean that you can take your wife as an accompanying relative. If, further, you presume that you have two younger children, who are non-U.S. citizens, then those children cannot be sponsored except as a fourth preference. Further, a brother or sister is not considered an immediate relative, and in the immediate relative application sponsoring you, only you, and no one else, can be sponsored.