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Family-Based Immigration
Preference Relatives of USC/LPR
Unlike the immediate relative category,
the preference family-based immigration
categories generally have annual numerical
limitations on the immigrant visa issued.
Whenever there are more qualified applicants
for a category than there are available
visa numbers, the category will be considered
oversubscribed, and immigrant visas will
be issued in the chronological order in
which the petitions were filed until the
visa number is current. The filing date
of a petition becomes the applicant's priority
date. The applicant cannot apply for permanent
residence until his or her priority date
is reached, which may take several years
for certain heavily oversubscribed categories.
The family-based preference categories
are as follows:
Family First Preference: Unmarried sons
or daughters (21 or older) of U.S. citizens
(USC);
Family Second Preference: Spouses, unmarried
sons or daughters of lawful permanent
Residents (LPR);
Family Third Preference: Married sons or
daughters of U.S. citizens;
Family Fourth Preference: Brothers or sisters
of U.S. citizens, if such citizens are at
least
21 years of age.
Derivative Beneficiaries: Unlike immediate
relatives, the spouse or child of the
principal alien under the family-based preferences
is entitled
to the same status and order of consideration,
if
accompanying or following to join the spouse
or parent.
The Visa Bulletin, which is released each
month by the U.S. State Department, provides
the cut-off dates in each of the preference
categories outlined above.
Application Procedures for Preference
Relatives
Adjustment of Status
For permanent residence applications based
on marriage to a LPR or the other family
relationships included in the four preference
categories, where the foreign relative is
in the United States, the foreign relative
may apply for permanent residence within
the United States through a process called
Adjustment of Status. To begin this process,
the USC or LPR sponsor submits an immigrant
visa petition on Form I-130 to the local
U.S. Citizenship & Immigration Services
(USCIS) office having jurisdiction over
the foreign relatives’ place of residence.
As described above, the filing date of a
petition becomes the applicants’ priority
date. The foreign relative cannot apply
for permanent residence until his or her
priority date is current, which may take
several years for certain heavily oversubscribed
categories. Where the Form I-130 was filed
before December 21, 2000, a foreign spouse
or unmarried minor children of a lawful
permanent resident may be eligible for a
V visa to await the availability of permanent
residence.
Once the I-130 is approved, and after the
foreign relative's priority date is current
based on the U.S. State Department's Visa
Bulletin, the foreign relative submits an
application for adjustment of status on
Form I-485, together with a number of other
USCIS forms and evidence required by the
immigration law. The foreign relative may
also apply for an Employment Authorization
Card (EAD) and Advance Parole to allow him
or her to work and travel while the application
is pending. USCIS schedules an in-person
interview for the foreign relative and the
U.S. citizen or Lawful Permanent Resident
sponsor, generally within 6 to 12 months,
depending on the location of the filing.
A decision whether to grant LPR, i.e. “green
card”, will usually be made at the
interview. The foreign relative may have
attorney representation at the interview.
The burden is on the parties to establish
the validity of the relationship. One of
the most important requirements for filing
adjustment of status inside the United States
for these family-based immigration categories
is to prove that the foreign relative remains
a lawful immigration status until the time
of filing his or her application. Due to
the lengthy waiting for the visa numbers
to be current, it is almost infeasible in
reality for the foreign relative to keep
his or her immigration status valid until
that filing day.
Consular Processing
Where the foreign relative resides abroad,
he or she usually must remain abroad until
obtaining approval of an immigrant visa
by a U.S. embassy or consulate outside of
the United States.
To initiate the immigrant visa application,
the U.S. citizen or Lawful Permanent Resident
relative must submit an I-130 visa petition
to the appropriate USCIS office in the United
States.
Once the visa petition has been approved,
and after the foreign relatives priority
date is current based on the U.S. State
Department's Visa Bulletin, the foreign
relative will receive several mailings from
the U.S. State Department's National Visa
Center (NVC) and the U.S. embassy or consulate
abroad. These mailings will inform the relative
of the items required at the immigrant visa
interview abroad and will include various
application forms. The foreign relative
will need to submit application forms together
with the evidence and documents required
by the application packet to U.S. embassy
or consulate through NVC. Depending on the
country of the foreign relative’s
nationality, it usually takes six months
for the immigrant visa interview to be scheduled.
Conditional Residence
If a family-based permanent residence application
is based on a marriage and the marriage
is less than two years old when the foreign
spouse becomes a permanent resident, the
permanent residence will be conditional
and the green card will expire after two
years. Both spouses must submit a joint
petition on Form I-751 to remove the condition
within the 90-day period immediately preceding
the expiration of the conditional residence.
Due to the waiting time for the visa number
to become current for the preference relative
category is usually way over two years,
and the immigrant visa issued to the foreign
relative is therefore a permanent one, it
is unusual for the married couple to file
a joint petition to remove the condition.
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