U.S. Legal Permanent Residents may petition or sponsor their foreign national spouses or children to also become U.S. Legal Permanent Residents. In many family-based immigration categories (“preference categories”), there are long and growing waiting lines, sometimes several years long, before the individual sponsored may become a permanent resident (“green card” holder). Significantly, the filing of an I-130 by a Legal permanent resident for a spouse does not confer the right for the foreign national spouse to live or work in the United States while the petition is pending or after its approval. The filing date of the I-130 petition establishes the “priority date,” or place in line, for an immigrant visa. Foreign national spouses of Legal permanent residents fall within the Family-Based Second Preference “A” category. For these individuals, the I-130 petition must be approved and the “priority date” must be current (the applicable waiting time must pass) before he or she may apply for an immigrant visa or adjustment of status to permanent resident (“green card”). The length of the waiting line depends on when the I-130 petition was filed, as well as the foreign national’s country of citizenship. When the I-130 petition is approved, and the applicable waiting time has passed, the foreign national may then apply for an immigrant visa. This permits the foreign national to become a permanent resident of the United States (“green card” holder) after admission to the United States with the immigrant visa. Or, if eligible, he or she may concurrently apply to adjust status to permanent resident (“green card”) while present in the United States.

Spouse of a Permanent Resident

Permanent residents may petition for, or “sponsor,” their foreign national spouses to become permanent residents (“green card” holders) of the United States. The immigration of a foreign national spouse of a Legal permanent resident is initiated by the filing of an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (“USCIS”). These petitions must be accompanied by documentary evidence of the existence of a spousal relationship and evidence of the Legal permanent resident’s permanent resident status. Additionally, USCIS normally requires extensive evidence that the married couple’s relationship is genuine. A marriage entered into solely for immigration purposes is a crime for both parties, and bars the foreign national forever from having a visa petition approved on his or her behalf.

If the foreign national’s spouse becomes a United States citizen during the processing of his or her petition or while he or she is waiting for a visa number to become available, the foreign national spouse’s preference category automatically converts to immediate relative and he or she will no longer be subject to the waiting lines of the preference category system.

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.

Child of a Permanent Resident

Permanent residents may petition for, or “sponsor,” their foreign national children to also become U.S. permanent residents (“green card” holders) of the United States. The immigration of a foreign national child of a permanent resident is initiated by the filing of an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (“USCIS”). These petitions must be accompanied by documentary evidence of the existence of a parent/child relationship and evidence of the Legal permanent resident’s permanent resident status. Additionally, if a child is born out of wedlock and the father is the permanent resident sponsor, USCIS normally requires that the father prove legitimation of the child or the existence of a bona fide father-child relationship.

In many family-based immigration categories (“preference categories”), there are long and growing waiting lines, sometimes several years long, before the individual sponsored may become a permanent resident (“green card” holder). Significantly, the filing of an I-130 by a permanent resident for a child does not confer the right for the foreign national child to live or work in the United States while the petition is pending or after its approval. The filing date of the I-130 petition establishes the “priority date,” or place in line, for an immigrant visa. Foreign national children of permanent residents fall within the Family-Based Second Preference category. Minor children (under age 21) fall within the Family-Based Second Preference “A” category, and children over the age of 21 fall within the Family-Based Second Preference “B” category. For these individuals, the I-130 petition must be approved and the “priority date” must be current (the applicable waiting time must pass) before he or she may apply for an immigrant visa or adjustment of status to permanent resident (“green card”). The length of the waiting time depends on when the I-130 petition was filed, as well as the foreign national’s country of citizenship. When the I-130 petition is approved, and the applicable waiting time has passed, the foreign national may then apply for an immigrant visa. This permits the foreign national to become a permanent resident of the United States (“green card” holder) after admission to the United States with the immigrant visa. Or, if eligible, he or she may concurrently apply to adjust status to permanent resident (“green card”) while present in the United States.

The Child Status Protection Act (“CSPA”) as applied to the Family-Based Second Preference category is complicated. A child’s age is “locked in” only on the date that the “priority date” becomes current for the category less the number of days the immigrant visa petition is or was pending, provided that the foreign national child applies for Legal permanent resident status within one year of visa availability. The application of the CSPA is critically important because of the long waiting lines for visa availability in these categories.

Additionally, if the foreign national’s parent becomes a United States citizen during the processing of his or her petition or while he or she is waiting for a visa number to become available, the foreign national child’s preference category automatically converts to either immediate relative if under age 21 or Family-Based First Preference if age 21 and older on the date of the parent’s naturalization, unless the sponsoring parent chooses to have his or her immigrant visa petition to continue to be processed as a Second Preference case. The CSPA locks in the child’s age as of the date of the parent’s naturalization even if permanent resident status is accorded after the son or daughter turns 21. Naturalization to United States citizenship of the sponsor eliminates the waiting lines for children under age 21, and may negatively or positively impact the lines for children age 21 and over. It is for this reason that Congress allows the parent to select the family-based category for the immigrant visa petition upon becoming a naturalized citizen.

Another pivotal issue in determining the eligibility of a child to apply for permanent resident status is the child’s marital status. For example, if the child of a Legal permanent resident marries before he or she becomes a permanent resident, eligibility under this category automatically is cancelled. If the Legal permanent resident naturalizes, then the parent may file a new petition for the married son or daughter. If the child’s marriage later is terminated, new eligibility for a family based petition is established.

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.