A visa is a temporary pass that allows a person to enter the United States and remain there for a specified period of time. Having this visa allows the holder to travel to a port of entry, airport, or land border. There are two main types of US visas: nonimmigrant, and immigrant.
Immigrant visas, also known as green cards, are issued to those who wish to live in the United States permanently. In comparison, a nonimmigrant visa is appropriate for those who maintain a permanent residence outside of the United States but wish to stay in the US temporarily for tourism, business, medical treatment, or temporary work or study.
Family-based immigration applications require at least two family members, a petitioner and a beneficiary. The petitioner must be a U.S. citizen or lawful permanent resident, and the beneficiary must be a foreign family member who is neither. Importantly, there are several ways to obtain U.S. citizenship or status as a lawful permanent resident (“LPR”).
After obtaining status as a lawful permanent resident or U.S. citizenship, a person may act as a sponsor for certain relatives to obtain a family-based immigrant visa. If successful, the foreign family member will receive a green card and become a permanent resident themselves. Permanent resident status will provide that foreign family member the privilege of living and working in the United States permanently.
It is important to note that there are two categories of family members qualified to receive a family-based immigration visa: immediate relatives and family preferences. The category of the family member determines the priority that the immigrant will receive in obtaining a green card, with the immediate relative category being the most desirable.
There are an unlimited number of visas available to immediate relatives of U.S. citizens or permanent residents, giving them special immigration priority. In contrast, family preference categories have only a limited number of visas available, meaning they may wait anywhere from six months to as many as 20 years to obtain a green card.
Immediate relatives of U.S. citizens or permanent residents include the following people:
- Unmarried children under the age of 21;
- Orphans legally adopted abroad;
- Orphans to be legally adopted in the United States; or
- Parents over the age of 21.
If the person seeking a green card does not fall into one of the above mentioned categories, then they will likely fall into the family preferences category.
In order to immigrate through the immediate relative category, there are several requirements that must be met, including:
- The U.S. citizen or permanent resident relative must petition the foreign family member. This means that the sponsoring family member must file a “Form I-30, Petition for Alien Relative,” on behalf of the foreign national relative with the Department of Homeland Security. Fees must also be paid;
- A qualifying immediate relative relationship must be documented. This may include documentation proving familial relationships, birth documents, etc.;
- The immediate relative must apply for a green card, either through consular processing or adjustment of status if they are already in the United States with a temporary visa;
- The U.S. citizen or permanent resident must promise to support the family member. This requires filing a “Form I-864, Affidavit of Support,” on behalf of the beneficiary. The affidavit is to show that the beneficiary has adequate means of financial support and will not likely rely on the U.S. government for financial support. Generally, an income level that is at least 125% of the Federal poverty level is sufficient; and
- The immediate relative must be demonstrate that they do not pose a danger to U.S. society based on health, security, immigration violation, or criminal grounds.
As opposed to the immediate relative category, only a limited amount of visas are available for the family preferences category. This category includes relatives with a more distant relationship to the family member sponsoring their immigration visa. The family preference categories include and are ranked as to immigration priority as follows:
- First Preference: First preference in immigration priority is given to unmarried sons and daughters of U.S. citizens, and their minor children (23,400 visas allotted);
- Second Preference: Second preference is given to spouses and unmarried children (under the age of 21) and unmarried adult children (over the age of 21) of permanent residents (114,200 visas allotted). 70% or more will go to the spouses and children under the age of 21);
- Third Preference: Third preference is given to married children, regardless of age, as well as their spouses and minor children of U.S. citizens (23,400 visas allotted); and
- Fourth Preference: Fourth preference is given to the brothers and sisters, their spouses and their minor children, of adult U.S. citizens. (65,000 visas allotted)
Importantly, grandparents, grandchildren, nephews, nieces, uncles, aunts, cousins, and in-laws cannot be directly petitioned. In order to immigrate through the family preference category, the family member must meet the same requirements as immigrating through the immediate relatives category, but must document a qualifying family preference relationship, instead of an immediate relative relationship.
As noted above, immigration policies are constantly changing in the U.S., dependent upon the current administration, shifting viewpoints, availability of funds, and other various influences. Thus, the process of obtaining a family-based immigrant visa could change in the future. For instance, a recent change was that foreign same-sex spouses are now able to apply for family-based immigrant visas.
Other potential changes could include changes to the quotas, or number of family-based immigrant visas allocated each year, for either the immediate relative or family preferences category. If so, the waiting period for obtaining a green card would also likely change.
Opponents of the family-based immigrant visa process, who refer to the process as “chain migration,” believe that the availability of family-based immigrant visas should be limited or abolished. If such opponents succeed, immigration policies would become more conservative and the amount of person eligible to receive such visas, or become permanent residents would decrease. Thus, monitoring the political issue of immigration may become important when considering petitioning for a family-based immigrant visa.
As can be seen, there are numerous requirements and steps that must be followed in order to apply and obtain a family-based immigrant visa. Immigration cases can become increasingly complex depending on the particular circumstances involved.
Thus, it may be in your best interests to consult with an experienced and well qualified immigration attorney as early as possible in the process. An experienced immigration attorney will assist you throughout the process and make sure that every requirement is met and all of the applications and forms are filled out correctly.