Family-based Immigration
US citizens, and US green card holders (Lawful Permanent Residents) may petition for certain relatives:
US citizens may petition for Immediate Relatives, who must be their spouse or their unmarried children under age 21. Additionally, US citizens who are over age 21 may petition for their parents. This has no annual quota and therefore no waiting list.
US citizens may petition for F1 relatives, who are unmarried sons and daughters over 21. This category has a waiting list.
LPRs may petition for F2A relatives, who are a spouse or unmarried children under age 21. This category has a waiting list.
LPRs may petition for F2B relatives, who are unmarried sons and daughters over 21. This category has a waiting list.
US citizens may petition for F3 relatives, who are married sons and daughters over 21. This category has a waiting list.
US citizens may petition for F4 brothers and sisters. This category has a waiting list.
All family-based petitioners must prove the authenticity of their relationship to the beneficiary family members. They must also show sufficient income or assets to support the family members in the US.
The waiting list:
Some categories have waiting lists, as listed above. Each petitioner files Form I-130 to prove their authentic relationship with the beneficiaries. The filing date of the I-130 serves as the Priority Date for the case. Based on the beneficiary’s nation of birth, there may be a waiting list of several years. Once the Priority Date becomes earlier than the monthly cut-off date published by the US Department of State, the beneficiary is eligible for an immigrant visa. If they are outside of the US, they proceed with online form DS-260 and a visa interview. If they are inside the US on a lawful status, they proceed with Adjustment of Status via Form I-485.
Forgiveness of certain status transgressions:
Usually, if a foreign candidate engages in unauthorized work, or stays longer than their lawful entry allowed time, they are in “unlawful presence” and are legally prevented from filing I-485.
The rule has one important exception: in petitions where the beneficiary is an Immediate Relative (i.e. the parent, spouse, or unmarried child under age 21 of a US citizen), the USCIS disregards unauthorized work and periods of unlawful presence due to overstay. Therefore, if the beneficiary’s only transgressions were unauthorized work, or overstaying their lawful entry, they are still allowed to file I-485 Adjustment of Status, as long as they are immediately related to a US citizen.
Fiancé (e) K-visas:
US citizens (and not LPRs) may sponsor a fiancé(e) for a K-visa, allowing them to enter the US expressly to marry the US citizen. As usual, the petitioner must prove that the relationship is authentic, and that the petitioner has the financial means to support the beneficiary.
Once the foreign partner completes the DS-160 online form and visa interview, they are allowed to enter the US for 90 days. During this time, they must marry the US citizen. The foreign spouse may then file I-485 to Adjust Status.
Two-year Conditional Green Card in certain cases:
In all marriage cases, once adjudication reaches completion, the US authorities analyze the duration of the marriage on that date. If the marriage has been in existence for less than 2 full years’ duration at this time, the authorities issue a Conditional Green Card valid for only 2 years. In the final 3 months of this period, the petitioner must file Form I-751 to prove that the marriage is still valid, and that the conditions therefore can be lifted. (Note: in cases where the marriage has already ended, it is possible for the foreign ex-spouse to file an I-751 on their own, seeking a waiver.)
Financial Support:
The petitioner in any family-based immigration case must demonstrate sufficient finances to support the foreigner, plus any other household members. They must also sign Form I-864, which is a legally binding contract to continue to support the family member even if they become divorced or otherwise estranged. This contract can be enforced by the US legal system, and generally cannot be discharged except in a handful of specific circumstances.
Note that even if a foreign spouse divorces the US petitioner and remarries another person, the original petitioner may still be obliged to support the beneficiary. Be sure to understand your rights and obligations by consulting with an experienced attorney.
Family immigration helps keep your loved ones together. Contact us today at intake@bhulaw.com or via Wechat at “BenjaminCJHu” to discuss your family’s options for an American future.