Family unity is a fundamental tenet of the U.S. immigration system and U.S. citizens and U.S. lawful permanent residents may petition for, or “sponsor,” certain close family members to become permanent residents. In all cases, the family relationship must be established through documentary evidence. If the required evidence of family relationship is unobtainable, such as a birth certificate or marriage certificate, substantial secondary evidence is necessary. Secondary evidence, including DNA testing, may also be required in certain cases where a birth certificate is issued many years after the actual birth. It is important to verify that you have all of the necessary documentation to establish the family relationship before filing the petition.
In most family-based preference categories, with the exception of spouses, children (under 21), and parents of adult U.S. citizens, there are long and growing waiting periods before the individual sponsored may become a permanent resident. Waiting periods are set for each family-based preference category according to country of birth and are released by the Department of State monthly in their publicly viewable “visa bulletin.” The family-based preference categories and requirements for each are set forth below. It is important to note that establishment of a place in line alone does not provide any legal status or right to remain in the United States, nor does it allow for employment authorizationAdditionally, in most instances, and most notably in marriage cases, the family relationship must be maintained throughout the wait for lawful permanent resident status.
Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States. An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility. An individual’s admissibility should also be thoroughly assessed before a visa petition is filed. As such, we recommend that immigration counsel be consulted before a visa petition is filed.