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USA Immigration Explained

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Family & Marriage Sponsorship

The four preference categories under which an individual can obtain permanent residency through relatives are the following:

  • First preference (F1): Unmarried sons and daughters (21 years of age and older) of U.S. Citizens;
  • Second preference (F2A): Spouses and unmarried children (under 21 years of age) of Permanent Residents;
  • Second preference (F2B): Unmarried sons and daughters (21 years of age and older) of Permanent Residents;
  • Third preference (F3): Married sons and daughters of U.S. Citizens who are at least 21 years of age;
  • Fourth preference (F4): Brothers and sisters (siblings) of U.S. Citizens who are at least 21 years of age, along with their spouses and unmarried children.

Certain family members fall outside the quota system. This means that there is no limit, and therefore no waiting time for a Green Card for the following “Immediate Relative” (non-quota) family members:

The sponsoring family member, also known as the petitioner, is either a U.S. citizen or a lawful permanent resident (LPR, also known as green card holder). A LPR is a foreign national who has been granted the privilege of permanently living and working in the U.S. While immigrant petition cases in the family preference categories take a long time, there is no provision to live in the U.S. while the petition is pending. However, the sponsored family members (the beneficiaries of an immigrant petition) may be able to obtain a dual intent non-immigrant visa such as H1B or L1 visa if they independently qualify, as the H or L visa categories allow for intention to immigrate to the U.S. However, it would be much harder for a U.S. Consulate abroad to issue the beneficiary of an immigrant petition a visitor or student visa because it would be very difficult to prove that there is no intention to immigrate to the U.S. when the immigrant petition is pending.

An immigrant petition for a relative sponsored under the categories F1 through F4 would not require separate petitions for the relative’s spouse or unmarried children under 21 years of age. An immigrant petition for an immediate relative requires separate petitions for each family member.

The following steps are involved in becoming a lawful permanent resident based on sponsorship by a relative in the U.S. who is either a U.S. citizen or permanent resident:

  • An immigrant petition, also known as Form I-130 petition, is filed with the USCIS by the U.S. citizen or lawful permanent resident;
  • If approved, the State Department must determine whether an immigrant visa number is "immediately available" to the foreign national, even if the individual is already in the U.S. Fortunately, the quota system is not applicable to immediate relatives of U.S. citizens, and can therefore be disregarded;
  • If already in the U.S., the beneficiary of an immigrant petition may be able to "adjust status" to lawful permanent resident and obtain a green card (literally a card serving as proof of LPR status) assuming that the priority date is current and the individual is currently maintaining his or her respective nonimmigrant status. Adjustment of status ("AOS") is a procedure that allows an eligible applicant to become a LPR of the United States without having to go abroad and apply for an immigrant visa. The AOS application can be filed concurrently with the immigrant petition for an immediate relative if the immediate relative is present in the U.S. For the family preference categories F1 through F4, the normal course of events is for the immigrant petition to be filed first, and when the priority date is current, and again assuming that the beneficiary of the immigrant petition is lawfully present in the U.S., for filing adjustment of status application.

It may be possible to pay a penalty fee of $1,000 and adjust status in the U.S. under a section of the Immigration & Nationality laws known as Sec. 245(i) even if the sponsored individual is not maintaining current nonimmigrant status as long as the individual was sponsored through a family member or employer no later than April 30, 2001. Moreover, an immediate family member (spouse, parent, or child under 21 of a U.S. citizen) can normally adjust status in the U.S. as long entry was made legally into the U.S. even if the I-94 has subsequently expired. Adjustment of status is also possible for immediate relatives if entry was made through visa waiver (I-94W) for selected nationals.

An individual who is currently in the U.S. illegally (for example, the authorized stay in the U.S. as displayed on Form I-94 issued at port-of-entry into the U.S. has expired) would be subject to 3 and 10-year bars to entry to the U.S. if he or she departs the U.S. for any reason. Thus, departing the U.S. may severely delay obtaining a green card. We are not advocating continued violation of immigration laws, but this is a sensitive area and you should contact our law firm for a legal consultation which is always and will remain private and confidential.

The filing of an Adjustment of Status application by the beneficiary of an immigrant petition, if eligible to do so, allows for permission to continue to remain in the U.S. and the applicant will receive EAD (employment authorization document) within 90 days in the interim until the AOS application is successfully adjudicated.

If outside the U.S. when an immigrant visa number becomes available, the foreign national must go to the U.S. Consulate serving the area where he or she resides. The process is called consular processing. For most people already present in the U.S. Adjustment of Status is the preferred method since the AOS applicant whose case is denied may challenge such denial. Denial of a visa at a U.S. Consular post presents real problems as there is no judicial review available for state department matters. In addition, consular processing at a U.S. consular post abroad also involves the additional time and expense of traveling overseas and may needlessly separate family members. Furthermore, for AOS filed based on employer sponsorship, once the adjustment application has been pending for 180 days, the principal applicant may change employers within the same or similar occupational classification.

This article provides only general information, and your own case may require specialized guidance. Please contact our law firm to discuss.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]







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