Last Updated on December 4, 2022 by Anda Malescu
This article discusses family-based immigration to USA. Family-based immigration to USA refers to the situations where one family member over the age of 21 who is a U.S. citizen or lawful permanent resident (commonly known as green card holder) sponsors another family member, foreign citizen, to live permanently in the United States and obtain a green card or in other words lawful permanent residency in the US.
Family-based immigration to USA
Based on the degree of relationship between the foreign family member and the U.S. citizen family member or green card holder, there are two main types of family-based immigration that in turn determine the requirements, wait times, and visa availability for the foreign family member.
The types of family-based immigration to USA are:
1. Immediate Relative of U.S. citizen (IR visa)
U.S. citizens can sponsor lawful permanent residency (green card) for foreign family members who are immediate relatives. Only certain family members are considered immediate relatives of U.S. citizens based on the degree of close family relationship with the U.S. citizen.
For individuals who are immediate relatives of U.S. citizens, immigrant visas are available immediately and they do not need to wait for a visa to be available; in addition, there is no limitation on the number of visas issued each fiscal year.
This type of family-based immigration cannot be used by lawful permanent residents of the U.S. to assist foreign family member to obtain a green card.
According to U.S. immigration law, the following individuals are considered immediate relatives of U.S. citizens for the purposes of family-based immigration:
- Husband or wife of a U.S. citizen (IR-1)
- Children of a U.S. citizen, unmarried and under the age of 21 (IR-2)
- Orphan child adopted abroad by a U.S. Citizen (IR-3)
- Orphan to be adopted by a U.S. Citizen (IR-4)
- Parent of a U.S. Citizen who is at least 21 years old (IR-5)
- Widows or widowers of U.S. citizens if the U.S. citizen filed a petition before they died, or if the widow or widower files a petition within 2-years of the citizen’s death and is not remarried (IW)
Stepchildren and adoptions as immediate relatives of US citizens
Additionally, a U.S. citizen can sponsor a stepchild if requirements are met, or a child adopted or to be adopted from abroad if the child qualifies under one of the three processes available under U.S. immigration law, including Hague adoptions, Non-Hague adoptions and Non-Hague adoptions based on orphan process.
A U.S. citizen stepparent can sponsor a stepchild for green card if the marriage with the stepchild’s parent took place before the stepchild turned 18 years old.
2. Family Preference (F visa)
U.S. citizens and lawful permanent residents (LPR) can sponsor a green card for foreign family members with whom they have a more distant degree of family relationship and who are not considered immediate relatives discussed above.
The foreign individuals must have specific family relationships with the U.S. citizens or permanent resident in order to qualify for this immigrant visa type.
This type of family-based immigration can be used by both U.S. citizens and lawful permanent residents of the U.S. to assist foreign family member to obtain a green card, but only in certain circumstances discussed below.
The number of visas issued in this type of family-based immigration is limited every fiscal year and the foreign family member must wait until a visa becomes available to permanently immigrate to the United States.
For the purposes of family-based immigration, the following individuals can be sponsored by a U.S. citizen or permanent resident for a green card, listed in order of priority:
- First preference (F1) – Unmarried, adult sons and daughters (21 years or older) of U.S. citizens and their children, if any.
- Second preference (F2A)— Spouses of Green Card holders and unmarried children (under the age of 21) of permanent residents; among the family preference based immigration, this preference class is the only one that is current meaning that a visa is immediately available to be issued.
- Second preference (F2B) – Unmarried adult sons and daughters (21 years or older) of permanent residents.
- Third preference (F3) – Married sons and daughters (any age) of U.S. citizens, and their spouses and children.
- Fourth preference (F4) – Brothers and sisters of adult U.S. citizens and their spouses and children.
Please note that grandparents, aunts, uncles, in-laws and cousins cannot sponsor a relative for family-based immigration to the USA.
Example of family-based immigration to USA
To illustrate how family-based immigration to USA works as immediate relative of a U.S. citizen and under the family preference categories above, let us say for example that you are a U.S. citizen, are 30 years old with a good job and you want to help your mother and your brother obtain a green card and come to live permanently in the United States.
In this case, you can apply for your mother as an immediate relative of a U.S. because she is a parent of a U.S. citizen who is over 21 years old and you can also apply separately for your brother under the family preference fourth classification because he is a brother of a U.S. citizen who is over 21.
While you can petition for both your mother and your brother, an immigrant visa (IR-5) will be immediately available for your mother, but for your brother an immigrant visa (F4) will not be immediately available and he may have to wait years before he can immigrate to the United States.
Application process for family-based immigration to USA
To sponsor a foreign family member for a green card, the family member who is a U.S. citizen or lawful permanent resident must file certain documents and be able to prove that he or she has enough income or assets to financially support the foreign family member when they come to the United States.
I-130 Petition for Alien Relative and Financial Sponsorship
To start sponsoring a foreign family member for a green card through family-based immigration to USA, the U.S. citizen or lawful permanent resident must first file an I-130 Petition for Alien Relative with U.S. Citizenship and Immigration Services (USCIS) together with any required supporting documents.
The purpose of the I-130 Petition for Alien Relative is to establish the family relationship between the US citizen sponsor or US permanent resident sponsor and the foreign family member beneficiary.
Once USCIS approves the I-130 Petition for Alien Relative and a visa number is available, the foreign family member may apply for a green card.
There are two basic paths to apply for the green card: consular processing or adjustment of status. Consular processing is a way of applying for an immigrant visa (green card) through the U.S. embassy or consular office in a foreign country when the foreign family member being sponsored is physically outside of the United States.
Normally, when USCIS approves the I-130 Petition for Alien Relative sends it to the U.S. Department of State’s National Visa Center (NVC).
When a visa is available then the NVC notifies the sponsor and the foreign family member, inviting him or her and qualifying dependents to apply for immigrant visas through the U.S. embassy or consular office in the foreign country. At that time, the foreign family member and each dependent immigrating with the foreign family member must complete the Application for Immigrant Visa and Alien Registration (Form DS-260).
Finally, the U.S. citizen sponsor or lawful permanent resident sponsor must submit an I-864 Affidavit of Support to prove that you can financially support the foreign individual sponsored if the person does not have the means to support him or herself.
I-485 Register Permanent Residence or Adjust Status
At times, the I-130 Petition for Alien Relative can also be filed together with an application for permanent residence called I-485 Application to Register Permanent Residence or Adjust Status.
The I-485 Application to Register Permanent Residence or Adjust Status can be filed at the same time as the I-130 Petition for Alien Relative only when the foreign family member being sponsored is already physically present in the United States and entered into the U.S. legally.
In addition, the U.S. citizen sponsor or lawful permanent resident sponsor must submit an I-864 Affidavit of Support and agree to be the foreign family member financial sponsor.
Malescu Law can assist you
Our experienced immigration attorneys in Miami, Florida USA can assist you with family-based immigration to the USA, including advising on case strategies, preparing and filing petitions and visa applications for foreign family relatives and preparing for visa interview process. Contact us or book an appointment.
Malescu Law P.A. – Business & Immigration Lawyers
