FAMILY BASED IMMIGRANT VISAS
1) Categories
a. Immediate Relative (IR) Categories There are five categories falling under this group, which are based on a close family relationship with a U.S. citizen. IR categories are not subject to numerical limitations such that visa numbers are immediately available to the beneficiaries of IR petitions.
IR visa categories include:
1. IR-1: Spouse of a U.S. Citizen
2. IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen
3. IR-3: Orphan adopted abroad by a U.S. Citizen
4. IR-4: Orphan to be adopted in the U.S. by a U.S. citizen
5. IR-5: Parent of a U.S. Citizen who is at least 21 years old
b. Family Preference Categories:
These visa types are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). Family preference categories are subject to numerical limitations
1. Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any.
2. Family Second Preference (F2): The following relatives of LPRS:
a. Spouses, minor children (F2A).
b. Unmarried sons and daughters age 21 and over (F2B).
3. Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children.
4. Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age.
Under immigration laws, a child can be any of the following:
• A biological child born in wedlock;
• A biological child born out of wedlock:
If the mother is petitioning, no legitimation is required;
If the father is petitioning, legitimation is required in accordance with the laws of the father or child’s place of residence; or
If the father is petitioning and the relationship is not legitimated under applicable laws, a bona fide parent-child relationship must be shown to have existed prior to the child’s 21st birthday and while the child was unmarried;
• A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18; or
• An adopted child if the child was adopted prior to age 16 (one exception is if siblings are adopted, as long as one was under 16, the other could be older than 16 but younger than 18), AND the adopted child has resided in the legal and physical custody of the adoptive parent for 2 years prior to filing.
2. Numerical Limitations for Limited Family-Based Preference Categories
Approximately 226,000 visa numbers are allocated each fiscal year for family-based immigrant categories. For family-based immigration, visa numbers are issued in the chronological order in which the petitions were filed based on their priority date. Currently, the number of qualified applicants exceeds the available immigrant visas for each category causing a delay in the issuance of immigrant visas. Due to per-country limitations, the countries China, India, Mexico and the Philippines, with significantly high demand for family-based immigrant visas, experience several years of waiting time.
3. Requirements
The sponsoring relative must file a Form I-130, Petition for Alien Relative with the USCIS, supported by documentation evidencing the claimed relationship. Except for U.S. citizens sponsoring their parents or siblings, there is no minimum age to be eligible to petition a relative. However, a sponsor is required to execute an Affidavit of Support on behalf of the sponsored relative(s), which requires that the sponsor is at least 18 years old and living in the U.S.
To apply for an immigrant visa when the priority date of the petition is already current, the applicant may either apply for adjustment of status in the United States if he or she is physically present in the United States, or apply through consular processing at a U.S. consulate office in his or her home country.
4. Conditional Status for Spouses and Step-children of U.S. Citizens or LPR
If the U.S. citizen or LPR spouse has not been married to the alien spouse for 2 years at the time the alien spouse or step-child receives permanent residence, the alien spouse/step-child will be granted conditional permanent resident status valid for two years from the date the status is granted.
An alien spouse who was granted conditional resident status upon marriage to a U.S. citizen or LPR must file Form I-751, Petition to Remove Conditions on Residence. Generally, the petition is filed jointly by the alien spouse and the US citizen spouse during the 90-day period immediately before the second anniversary of the date the alien spouse was granted conditional resident status. If Form I-751 is filed on time, the alien spouse’s conditional resident status is extended until a decision is made on the application. On the other hand, if the petition is not filed within the 90-day period, the alien spouse automatically loses permanent residence status as of that second anniversary date and the Service may begin removal proceedings against him/her.
Dependent children who acquired conditional residence concurrently with the alien spouse and who entered the United States within 90 days of the alien spouse’s arrival may petition to remove conditions in the same Form I-751 of the alien spouse. However, if dependent children acquired their conditional resident status after 90 days from the date of alien spouse’s adjustment of status, or if the conditional resident parent is deceased, the dependent children will need to file a separate Form I-751.