A family immigration petition involves a U.S. citizen or permanent resident (green card holder) petitioning immigration authorities to allow a family member to relocate to the United States. The process is complex and involves different quotas and waiting periods.
The family immigration visa categories are divided into several sub-categories. Each of these sub-categories is associated with different wait lists and quotas. Generally speaking, immediate relatives are given preference over more distantly-related persons, and relatives of citizens have a shorter wait and more visas available than relatives of permanent residents.
Certain visa applicants will wait longer because they are from countries with historically very high family visa requests. These include China, El Salvador, Guatemala, Honduras, India, Mexico, and the Philippines.
Family-based immigrants must show they will not depend on the federal, state, or county government for financial support. If they cannot show that, then the family member who petitioned on their behalf must promise to provide economic support. To do this, the citizen or permanent resident files an Affidavit of Support. They must have an income of at least 125 percent of the federal poverty level.
Who Can Petition for Relatives?
Family-based immigration petitions are reserved for relatives of U.S. citizens and lawful permanent residents (green card holders).
The petitioning process requires several documents and records that must be completed by both the petitioner and the relative and includes the provision of documents such as birth certificates, travel documents, medical records, divorce or annulment decrees, etc.
Immediate Relatives of U.S. Citizens and Permanent Residents
If the foreigner is an immediate relative of a U.S. citizen, they can become a lawful permanent resident (get a green card) based on their family relationship if they meet certain eligibility requirements.
They are an immediate relative if they are:
- The spouse of a U.S. citizen or permanent resident.
- The child of a U.S. citizen provided the child is under 21 years older
- The parent of a U.S. citizen, if the U.S. citizen is 21 years of age or older
The number of permanent residence visas for immediate relatives is unlimited, so a visa is always available.
Other Family Immigrant Categories
Besides immediate family members, other family members are eligible to obtain a permanent residence visa according to the following family “preference immigrant” categories:
- First preference (F1) – unmarried older 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 permanent residents (green card holders)
- Second preference (F2B) – unmarried older sons and daughters (21 years of age and older) of permanent residents
- Third preference (F3) – married sons and daughters of U.S. citizens
- Fourth preference (F4) – brothers and sisters of U.S. citizens (the citizen must be 21 years of age or older)
The Waiting List
Family-sponsored visas are limited to 226,000 visas per year. In addition to the general limit, there are limits to the number of family visas that can be granted to countries of origin (25,620 per country)
When the demand exceeds the supply of visas, a waiting list forms, and the United States Citizenship and Immigration Services (USCIS) distributes 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.) Approximately 4 million people are on the waiting list for family-based visas.
The wait for a family-based visa is years long and can be as much as a decade. As of December 2022, family-based visas were available as follows:
- First preference: applicants whose priority date is before 8/8/2016 (longer waits for people from Mexico and the Philippines
- Second preference F2A: current (all priority dates may file)
- Second preference F2B: applicants whose priority date is before 1/1/2017 (longer waits for people from Mexico and the Philippines)
- Third preference: applicants whose priority date is before 11/8/2009 (longer waits for people from China, India, Mexico, and the Philippines)
- Fourth preference: 12/15/2007 (longer waits for people from India, Mexico, and the Philippines)
When the priority date becomes available, prospective immigrants in the United States can apply to USCIS for adjustment of status to permanent resident, and if they are outside the United States, they may apply for an immigrant visa at a U.S. embassy or consulate.
Critics argue that the long wait times for a visa to become available cause significant difficulties for American families. They are often forced to wait years to reunite with their family members, even though the foreign family member has already qualified to immigrate. Family separation can impose economic, logistical, and emotional hardships on families. The fact that backlogs are growing makes planning for the future very difficult.
Fiancé Visas
In addition to the visas for family members in general, one category has special requirements and benefits. These are fiancé visas. If an individual is the fiancé of an American and currently lives abroad and wishes to join their loved one in the United States, they may file for a fiancé visa. If the foreigner has children under the age of 21, their children may be eligible to immigrate to the United States as well.
The fiancé visa (K-1 visa) has important time restrictions. The individual has 6 months from issuance of the visa to enter the United States and 90 days following the arrival in the U.S. to marry the U.S. citizen. The fiancé visa allows entry for the individual only once; therefore, once the alien has entered the country, they cannot leave and return on the K-1 visa.
To be eligible for a K-1 fiancé visa, the individual must meet the following requirements:
- The marriage must be valid, meaning both parties have a bona fide intent to establish a life together, and the marriage is not to obtain an immigration benefit
- The individual must provide evidence that they intend to marry a U.S. citizen. This can be accomplished by showing actual plans of a ceremony, for example
- The parties must have met in person within the last two years
- The U.S. spouse must be an actual citizen and not just a permanent resident
- The individual must be legally able to marry. For example, they must be of proper age and not be currently married to someone else. If they have been married before, they will need to provide a copy of a divorce or annulment decree
Once the individual marries their American fiancé, they may file for an adjustment status to become a permanent resident and obtain a green card.
Do I Need a Lawyer for a Family Immigration Petition?
Family-based visa applications are complex and involve many steps and requirements. The fact that the regulations can change from yearly makes it difficult to complete the process correctly. They can take a long time to process, sometimes quite a few years. You may wish to hire a qualified immigration lawyer to get help with the family visa application.
An attorney can prepare the application for you and make sure to provide all necessary documents or other pieces of evidence. Also, if you face immigration issues or disputes, your lawyer can represent you in immigration court.
