Legal Immigration Status for Family Members

Much of the nationwide discussion about immigration matters focuses on how a foreigner can get legal immigration status based on a job. However, it is also possible for a foreigner to gain legal status based on their relationship to a U.S. citizen or permanent resident (green card holder). Sixty-five percent of all legal immigration is based on a family relationship.

How Can I Get Legal Immigration Status for My Family Members?

One might think that the alien relative themselves directly asks the U.S. Citizenship and Immigration Services (USCIS) for a permanent residence visa, but that’s not the case. Instead, it is the U.S. relative who files a Form I-130 petition to get permission to allow them to sponsor the alien relative.

Only people who are already U.S. citizens or permanent residents can file. After that petition is approved, the foreign national relative files an application to become a permanent resident. Each step involves different legal and factual issues.

The amount of time it will take to get a legal visa (it will be a permanent residence visa) depends on the following:

• the nature of the relationship between the alien and the U.S. family member;
• whether the U.S. relative has citizenship or permanent residence;
• what country the alien is coming from; and
• how many family visas were issued the year before

Family-based immigrants must show that they are not likely to rely on the U.S. government for financial support. If they cannot show that they can support themselves, then the family member who petitioned on their behalf must promise to provide financial support. To do this, the sponsor files an Affidavit of Support. The sponsor must have an income of at least 125 percent of the federal poverty level.

Immediate Relatives of U.S. Citizens and Permanent Residents

If you are an immediate relative of a U.S. citizen, you can relatively promptly get a green card based on the family relationship.

You are an immediate relative if you are:

• The spouse of a U.S. citizen or permanent resident
• The child of a U.S. citizen
• The parent of a U.S. citizen, if the U.S. citizen is 21 years of age or older
• The sibling of a U.S. citizen provided that the citizen is 21 years of age or older

The number of permanent residence visas for immediate relatives of a U.S. citizen is unlimited, so there is always a visa available.

Other Family Immigrant Categories

Besides immediate family members of U.S. citizens, other family members are eligible to apply for a permanent residence visa according to the following family “preference immigrant” categories:

• First preference (F1) – unmarried sons and daughters (21 years of age and older) of U.S. citizens;
• Second preference (F2A) – spouses and children (unmarried and under 21 years of age) of lawful permanent residents;
• Second preference (F2B) – unmarried sons and daughters (21 years of age and older) of lawful permanent residents;
• Third preference (F3) – married sons and daughters of U.S. citizens; and
• Fourth preference (F4) – brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older)

As an aside, while not technically a family-based petition, it is also possible for a person to petition their future spouse for immigration into the U.S. using a fiancé visa petition.

The Backlog

Family-sponsored visas are limited to 226,000 visas per year. (By statute, additional visas may be awarded when the previous year’s allotment of visas was not fully used.) There are also limits to the percentage of family visas that can be issued based on an immigrant’s country of origin (25,620 per country).

Certain countries are “oversubscribed,” meaning that many people from that country are trying to get a family-based green card: El Salvador, Honduras, Guatemala, China, India, the Philippines, and Mexico.

When the demand exceeds the supply of visas for a given year in any given category or country, a waiting list (backlog) forms. To distribute the visas among all preference categories, USCIS allocates the visas according to a prospective immigrant’s preference category, country of origin, and “priority date.” (The “priority date” is the date the immigration petition was successfully accepted for processing by immigration authorities.) USCIS uses the priority date to determine an immigrant’s place on the waiting list.

When the priority date becomes available, prospective immigrants can apply to USCIS for adjustment of status to permanent resident if they are inside the U.S. on another type of visa or to apply for an immigrant visa with the Bureau of Consular Affairs outside the U.S.

Approximately 4 million people are on the waiting list to get family-based visas. The wait for a family-based visa is years, even more than a decade for some applicants. The U.S. Department of State publishes a monthly visa bulletin that family preference immigrants and their petitioners can review to see when they’ve reached the front of the line.

As of December 2022, family-based visas were available as follows:

• First preference: applicants whose priority date is before 8/8/2016, except for Mexico (12/10/2002) and the Philippines (4/22/2015)
• Second preference F2A: current (all priority dates may file)
• Second preference F2B: applicants whose priority date is before 1/1/2017, except for Mexico (1/1/2002) and the Philippines (10/1/2013)
• Third preference: 11/8/2009. China, India, Mexico, and the Philippines have different dates, ranging from 11/8/2009 back to 6/15/2001
• Fourth preference: 12/15/2007. India, Mexico, and the Philippines have the following dates: 2/22/06, 4/1/2001, 4/22/2004

Critics argue that the long wait times for a green card to be available cause significant hardship for American families, who are forced to wait years to reunite with their family members. This is so even though the foreign family member has already qualified to immigrate immediately. Family separation can impose logistical, economic, and emotional hardships on families. The fact that backlogs are growing makes future planning impossible.

Do I Need a Lawyer for Help to Change the Immigration Status of My Family Members?

Immigration laws can be complex and hard to stay on top of because they are subject to change from year to year. If you or one of your family members needs help with their immigration status, you should speak with an immigration lawyer in your area soon. Every year approximately 611,104 family visa petitions are filed. Sixty-seven thousand two hundred twenty-one get rejected because they were improperly filed or were missing information or evidence. Another 75,718 are denied. You don’t want yours to fall into one of those two categories.

Your immigration attorney will know your options and can prepare all the paperwork for you to ensure everything is completed and that any required supporting documents (such as a birth certificate) are included in the filing. Your lawyer can also help represent you in immigration court if needed, as you may have several options of which you might not be aware.

Lastly, if there are any significant changes or updates to immigration laws that might affect your rights, an attorney can keep you informed.