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  • Overview
  • Immediate Relatives
  • Preference Relatives


    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
    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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