Family-Based Permanent Residence

Individuals may obtain Permanent Residence (“green card”) through sponsorship by U.S. citizen or Permanent Resident family members. All that is required is a qualifying family relationship. Qualifying relationships are grouped into two main categories:

Immediate relatives of U.S. citizens are given preferential treatment in that they are allowed to immigrate in unlimited numbers. Immediate relatives are spouses, unmarried children under 21 and parents of U.S. citizens.

Other close family members of citizens and permanent residents are also allowed to immigrate, subject to annual numerical limitations. All of these categories currently have backlogs.

The following are the Family-Based categories and annual limits on each category:

Family-Based First Preference (FB-1): 23,400
Unmarried adult children of U.S. citizens

Family-Based Second Preference (FB-2): 114,200
FB-2A: Spouses and unmarried children under 21 of permanent residents
FB-2B: Unmarried children over 21 of permanent residents

Family-Based Third Preference (FB-3): 23,400
Married adult children of citizens

Family-Based Fourth Preference (FB-4): 65,000
Brothers and sisters of U.S. citizens

Note: The sponsor-status, relationship and age limitations for the preferences above must be met from the time the petition is filed until the time the sponsored foreign national completes permanent residence processing. However, if a change in the above occurs at any point in between, the case automatically converts to another preference, as long as there is an applicable preference category.

Process

Immigrant Petition (Form I-130)

A U.S. citizen or permanent resident sponsor will file a Form I-130, Petition for Alien Relative, for the foreign national demonstrating that one of the above-listed qualifying relationships exists. Petitioners residing in countries without U.S. Citizenship and Immigration Services (USCIS) offices must file their Form I-130, Petition for an Alien Relative, with the USCIS lockbox facility in Chicago. Petitioners residing in a country with a USCIS office have the option of sending their petitions to the USCIS Chicago lockbox, or filing at the international USCIS office in that country. Previous regulations permitted individuals overseas to file with USCIS or their local U.S. Embassy or Consulate. Under the new process, USCIS may authorize the U.S. Department of State (DOS) to adjudicate their case in certain emergency situations.

Adjustment of Status or Consular Processing

If a visa number is currently available, a foreign national may apply for Adjustment of Status in the United States if they are present here and otherwise eligible. Form I-485, Application to Adjust Status to that of U.S. Permanent Resident is filed with USCIS along with numerous other forms such as documentation of proof of the relationship (husband/wife, parent/child, etc.), medical forms and photos. A complete list of documentation needed in each case can be found at http://www.uscis.gov/.

If a visa number is currently available, and the foreign national is not in the United States, they will apply for an immigrant visa at a U.S. Consulate abroad. DS-230 Forms are filed with much of the same supporting documentation as Adjustment of Status.

Priority Dates

The priority date determines the foreign nationals’ place on the waiting list. The priority date is determined by the date USCIS receives the immigrant visa petition. Based on the foreign national’s preference category and his or her country of birth, the waiting time can be determined by viewing the Visa Bulletin, which is issued monthly by the DOS. Once the priority date is “current”, the foreign national can apply for Adjustment of Status or Consular Processing to obtain permanent residence.

As mentioned above, immediate relatives (spouse, unmarried children under 21 and parents of U.S. citizens) have no quota lines and therefore can apply for their permanent residence immediately upon approval of the immigrant petition. Immediate relatives, who are in the U.S. and otherwise eligible for Adjustment of Status, may file both the immigrant petition and Adjustment of Status application concurrently with USCIS.

Affidavits of Support

In all Family-Based cases, at the time of final processing for permanent residence, the applicant must provide a special Affidavit of Support (Form I-864), signed and notarized by the sponsoring family member. The Affidavit of Support is necessary to show that the foreign national will not become a “public charge”. The sponsor must attach prior federal income tax returns, plus current evidence of income and/or assets. The form and evidence must demonstrate income (or assets) sufficient to support the sponsor’s household members plus all the sponsored foreign nationals at 125% of the latest poverty guidelines.

The Affidavit of Support forms a contractually and legally binding contract between the sponsor and the U.S. Government in terms of which the sponsor agrees to repay the government any means-tested benefits provided to the foreign national until the foreign national has worked 40 quarters (10 years) or becomes a U.S. citizen, even if the family relationship is terminated.

Special Issues

Derivatives. In most cases, the sponsored foreign national’s spouse and children (unmarried and under age 21 at the time of their final processing) may derive permanent residence from the immigrant petition filed on behalf of the principal and can accompany or follow to join the principal foreign national without separate petitions being approved. However, immediate relative spouses and children do not derive permanent residence but need separate petitions filed on their behalf.

Conditional Residence. If, at the time permanent residence based on a marriage is granted, the marriage is less than two years old, permanent residence is only conditional. Conditional residents have the same rights and obligations as permanent residents. However, within a 90-day window preceding the second anniversary of the grant of conditional permanent residence, these individuals will need to file a petition to remove the conditions with the USCIS Service Center that has jurisdiction over them. If approved, the conditions are removed and the individual becomes a permanent resident.

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