US citizens and Lawful Permanent Residents (referred to as LPRs or green card holders) can petition for certain family members and relatives. US citizens can petition for the following relatives; spouses, children, parents, and siblings. Green card holders (LPRs) can petition for the following relatives: spouses and children.
For immediate family members of US citizens (spouses, children under 21 years of age, and parents), there is no wait times for visa availability. This category is called immediate relatives.
For all other family petitions, there are sometimes lengthy waiting times for visa availability, due to strict annual limits on green card numbers. The length of the wait depends upon the family preference category and the country of origin. Their category is called preference relatives.
Immediate Relative Petitions:
Immediate relatives of U.S. citizens are their spouses, parents, and children (under 21 years of age). Only a U.S. citizen who is 21 years of age or older may petition for immigration benefits for his/her parent/s. The immediate relative category is not subject to the numerical limitations and backlogs that apply to the preference relative categories. This means that there is always immediate availability of visa numbers.
Procedures:
- The sponsoring U.S. citizen relative must file Form I-130 on behalf of the foreign national relative and separately for each qualifying relative.
- If the foreign national relative is in the United States, it may be possible to request adjustment of status to permanent residence (Form I-485); if outside the U.S., the case will proceed via consular processing for an immigrant visa.
- The qualifying relationship must be documented. Biological relationships generally are proven via birth records and related proof of the familial relationship.
- Spouses must establish the existence of a legal marriage, as well as proof that the marriage is bona fide (not entered into primarily for purposes of gaining immigration benefits).
- If married for less than two years, the foreign national spouse will receive conditional permanent residence, valid for a two-year period. Removal of the conditions requires a later filing, again documenting the bona fide marriage.
- Filing for a relative generally requires an affidavit of support, establishing that the relative will not become a public charge.
- Almost all marriage cases, and some parent/children cases will require an interview if filed within the U.S.
Preference Relative Petitions:
Relatives of U.S. citizens and LPRs in the following preference categories are subject to limitations on the number of visas that can be issued each year. The Visa Bulletin, released monthly by the U.S. Department of State (DOS), provides the cutoff dates indicating the availability of immigrant visa numbers for each of the above categories. The family preference categories are:
- 1st Preference – Unmarried sons and daughters (above 21 years of age) of U.S. citizens
- 2nd Preference – Spouses and unmarried sons and daughters of lawful permanent residents (LPRs)
- 3rd Preference – Married sons and daughters of U.S. citizens
- 4th Preference – Brothers and sisters of U.S. citizens
Procedures:
- The sponsoring relative must file a petition (Form I-130) on behalf of the qualifying foreign national relative. If the relative is outside the U.S., the immigrant visa case will proceed via consular processing once the visa number becomes available, as listed on the Visa Bulletin published by the Department of State.
- Sufficient documentation of the qualifying family relationship must be provided.
- Family-based cases generally require an affidavit of support.
K-1 Fiancé and K-3 Spouse Visas:
US citizens can also bring their fiancés or spouses to the U.S. via K-1 and K-3 visas.
K-1 Visa: A U.S. citizen can petition for his/her fiancé with whom s/he met at least once in person within the preceding 2 years. Once the foreign fiancé obtains her K-1 visa at the U.S. consulate abroad, s/he enters the U.S., and the couple then have 90 days to get married and file for adjustment of status for a foreign spouse within the U.S.
K-3 Visa: These visas were designed to shorten the wait times U.S. citizens face when they are trying to bring in their spouses to the U.S. A U.S. citizen can petition for his/her spouse for a K-3 visa after the filing of an I-130 petition. The advantage of filing a K-3 visa is that, if the K-3 is adjudicated before the I-130 is adjudicated, the foreign spouse can enter the U.S. with the K-3 visa, and file for adjustment of status within the U.S., instead of waiting for an immigrant visa appointment at the U.S. Embassy abroad.
You must consult with an experienced immigration attorney before making any decisions as to whether you should take the K-1 / K-3 route.
HOW WE CAN HELP YOU
The Kulen Law Firm provides assistance and advice regarding the best strategies for petitioning for your qualified relative. This area of immigration law is quite complex, and often times the immigrant intent inherent in these applications have an interplay with your relative’s nonimmigrant intent, especially if your relative would like to apply for a nonimmigrant visa at the U.S consulate abroad or if s/he is already in the U.S. in another visa category. We have helped thousands of individuals petition and bring their family members to the U.S. with the best possible timeframes. We can guide you with our experience and make the best strategy available to you. We can prepare and file family petitions, represent couples and family members in their USCIS interviews within the U.S.
