If you are a U.S. citizen or green card holder seeking lawful permanent residence for your relative or if you are an immigrant with family ties in the United States, we encourage you to contact our law firm to schedule a consultation. Our attorneys have more than 30 years of experience in family immigration matters and have represented hundreds of families over the years. The attorney Thomas Vanasse is a former Chairman of the New York District Director Liaison Committee of the American Immigration Lawyers Associations and remains active with the committee. We regularly represent clients at immigration interviews in New York City, Holtsville, Newark, Cherry Hill, Philadelphia, Hartford, Orlando, Tampa, Miami and are available to appear at other district offices of U.S. Citizenship and Immigration Services across the country.
Family-based Immigrant Visas (Green cards though family ties in the United States)
Traditionally, one of the primary paths to lawful permanent residence in the United States is through sponsorship by family members already living here. Lawful permanent residence through family ties is available to those outside the United States and in some cases to those already here.
The family-based immigration system is consists of various categories based on family relationships. Most of these categories are subject to an annual quota and waiting lists (priority dates) are therefore often a factor.
Immediate Relatives including spouses of U.S. citizens
The first category of family members entitled to immigrate to the United States are those in the so-called Immediate Relative category, which consists of husbands, wives, parents and children (including stepchildren) under 21 years of age of United States citizens. Importantly, immediate relatives are not subject to quotas and therefore always have a green card available to them.
Another important feature of the immediate relative category is that many of the grounds of inadmissibility, such as unlawful employment and visa overstays, are waived for immediate relatives in the United States who are seeking adjustment of status.
For those immediate relatives outside the United States, the immigration process generally moves much faster than for those in other categories.
If you are the spouse of United States citizen and your case is approved before the second anniversary of your marriage, you will be subject to the conditional residence law, which will require you and your U.S. citizen spouse to jointly file a second immigration petition immediately prior to the two year anniversary of your case approval. In some cases your children will also be subject to these provisions.
Unfortunately, in some cases a marriage will not survive the two years required either due to divorce or abuse. In such cases the immigrant may be eligible for a waiver that will permit him or her to file to remove the conditions on residence on his or her own.
In June 2013, the United States Supreme Court struck down Section Three of the federal Defense of Marriage Act (“DOMA”), which opened the door for same-sex couples whose marriages are legally recognized in the jurisdictions in which they reside to apply for marriage-based immigration benefits. If one spouse is a citizen of the United States or has a green card, then the non-citizen spouse may apply for permanent legal residency with United States Citizenship and Immigration Services.
Other Family Categories
After the immediate relatives described above, the U.S. immigration law provides for immigration for unmarried children over 21, married children and siblings of U.S. citizens, as well as spouses and unmarried children of lawful permanent relatives.
As noted above, all of these relatives are subject to an annual quota and a wait times for visas. However, unlike immediate relatives, children and spouses of relatives may be entitled to a derivative green card through his or her parent or spouse. In other words, one petition may cover an entire immediate family.
Note that U.S. immigration law does not provide for immigration for grandparents, aunts, uncles, or cousins. Nor does it allow for the immigration of married children of green card holders.
Unmarried Children over 21 of U.S. Citizens (First Preference)
After immediate relatives, the next category of family immigration is unmarried children over 21 years of age of U.S. citizens. For those who have already turned 21, are not yet married, and whose mother or father is a U.S. citizen (whether by birth or naturalization), lawful permanent residence is available through sponsorship by that parent. Because this category is subject to an annual quota of 23,400, the waiting times can be quite long, so it is important to begin the process as early as possible because it is the filing of the petition that establishes the priority date, which in turn determines a person’s place in line for a green card.
In some cases the son or daughter of a U.S. citizen may qualify for citizenship directly, without having to apply for lawful permanent residence. However, this is one of the most complex areas of U.S. immigration law and consultation with an experienced attorney is advisable before starting this process.
Husbands and Wives and Children Under 21 Years of Age of Lawful Permanent Residents (Preference 2A)
The next category of family-based immigration is spouses of green card holders. Like the spouse of a U.S. citizen, the husband or wife of a green card holder can immigrate through his or her marriage. However, unlike spouses of U.S. citizens, the husband or wife of a green card holder is subject to an annual quota. This quota is determined using a complicated formula and wait times generally vary from approximately two to five years. Another important difference between spouses of citizens and spouses of green card holders is that spouses of green card holders are not entitled to automatic waivers for immigration violations and must be in lawful status in order to adjust status.
Unmarried Children Over 21 of Lawful Permanent Residents (Preference 2B)
Like children in the First Preference discussed above, an unmarried child over 21 years of age of a green card holder can immigrate through that parent. Because this category is subject to a relatively low quota, wait times are similar to those of First Preference cases. Thus it is important to begin to begin the process as early as possible so as to secure a priority date.
As noted above, U.S. immigration law does not provide a category for married children of green card holders. As such, if you are 21 or older and your green card holding parent has petitioned for you as an unmarried child over 21 of a green card holder, your parent’s petition will be voided if you marry before your parent becomes a citizen.
Married Children of U.S. Citizens (Third Preference)
Once a child of a U.S. citizen married, he or she falls within the Third Preference, regardless of whether he or she has turned 21. Because of the relatively small allocation of visas in this category, waiting times tend to be ten years or longer, so the early filing of the petition is important since the wait for the visa will not officially begin until this filing. Spouses and children under 21 are able to immigrate with the primary applicant under one petition.
Brothers and Sisters of U.S. Citizens (Fourth Preference)
The final category in the family-based immigration scheme is for siblings of U.S. citizens. With the annual quota always oversubscribed, the wait times in this category are generally well over ten years. Filing early and securing a priority date is imperative.