What You Need to Know About Family Immigration Petitions
U.S. Immigration laws allow family members to request legal status for a qualifying family member. The most common example is when a U.S. citizen marries someone who doesn’t have status. Essentially, the American spouse can pass on their status to their spouse, allowing the couple to live in the U.S.
Spouses are not the only ones that can benefit from family petitions. Many other relationships are included. There are two categories. Ultimately, which category you and your family member fall in will determine how long you have to wait to obtain legal status.
Immediate Relatives
When a person falls into an “immediate relative” category, a visa is “immediately available” to them. They do not have to wait months or years for a visa to become available.
It’s also important to note that U.S. citizens and lawful permanent residents have different abilities when requesting a family member.
The following are considered immediate relatives:
- Children. Both U.S. citizen parents and lawful permanent residents can petition for their minor children. For purposes of immigration, a minor child is an unmarried person under the age of twenty-one.
- Spouses (husband or wife). Green card holders and U.S. citizens have the ability to petition for their spouses. However, green card holds are subject to a wait time.
- Parents, but only when the child is over twenty-one. Lawful permanent resident cannot request a parent until they have naturalized. Only U.S. citizens can petition for their parents.
The following are considered family-sponsored immigrants. These categories will involve a wait time because a visa is not “immediately available.”
- Unmarried son or daughter of any age. U.S. citizen parents and lawful permanent residents can petition for their unmarried children, despite their age.
- Spouses of lawful permanent residents.
- Brothers and sisters of U.S. citizens only.
Understanding Levels of Preference
The U.S. immigration system is one of numbers. By law, there is a set number of people that are allowed to legally travel into the U.S. Much of it depends on relationship status, as well as which country a person belongs.
Each year, the U.S. government releases 226,000 family-based immigrant visas. Individuals who fall under the immediate visa category do not need to wait for one of these visas to become available. However, for those who are not considered immediate family members, they will have to wait until a visa is available.
Filing a Petition
Once you determine that a relationship enables you to pass status, you can file an application with immigration. The application, Form I-130, Petition for Alien Relative, is filed with evidence of the relationship. The agency that handles these requests is the United States Immigration and Citizenship Service (USCIS). That initial application doesn’t allow your family member to live in the U.S. legally. Instead, it formalizes with immigration that the relationship exists and your family member is entitled to a visa.
Each person needs this application whether or not they are located in or out of the U.S. However, depending on where the person is will determine where the application is initially filed. Having an experienced attorney can ensure that you file the application correctly.
Adjusting Status or National Visa Center Processing
You need an approved I-130 to proceed with your request for legal status. This usually comes in two forms – a conditional permanent resident status or a permanent resident status. If you have a conditional green card, you must take specific steps after two years of living in the U.S. to become permanent.
If you are located inside the U.S., you must file an Application to Adjust Status. This is done on Form I-485. This application determines whether your loved one can obtain status – either a conditional green card or a permanent one. Just because a person is married to a U.S. citizen doesn’t mean they are entitled to stay.
USCIS will review the applicant’s background information and determine whether they should be extended legal status. There are some reasons why legal status will not be approved. Certain criminal convictions can disqualify a person from obtaining a green card.
Generally, if someone enters into the U.S. without a visa, they will not be allowed to adjust their status inside the U.S. However, certain waivers could allow the person to consular process. This involves the person leaving the U.S. to pick up their visa and then coming back.
When a person is outside of the U.S., they must undergo the process with the Department of State’s National Visa Center abroad. They will be responsible for your interview and determine whether you can immigrate to the U.S.
Contact an Experienced Immigration Attorney
Immigration law is complicated, but our immigration attorneys at Castillo & Associates can speak with you about how to file a petition for your loved ones. To schedule a free consultation, call 1 800-497-9774.
Attorney Domingo Castillo is a workers’ compensation & personal injury lawyer who serve Southern California from our 5 offices: Indio, Pomona, Riverside, San Diego & Calexico.
