Family-Based Immigration

The process of petitioning for a family member can become paper-intensive and confusing at times.  The appropriate information, immigration forms, and supporting documents must be filed correctly from the beginning to ensure a smooth and expeditious application process.  Contact the attorneys at the Adrogué Law Firm, PLLC for a qualified and knowledgeable opinion on your immigration situation to help you with the immigration process.

Overview and Process

A Lawful Permanent Resident (LPR) is a foreign national who has been granted the privilege of permanently living and working in the United States.  One way to become an LPR can be based on the fact that you have a relative who is a United States Citizen (USC) or a LPR.  Once you determine your eligibility, you must go through a multi-step process.

  1. The U.S. Citizen and Immigration Services (USCIS) must approve an immigrant visa petition, I-130 Petition for Alien Relative.  This petition is filed by your USC or LPR relative (sponsor) and must be accompanied by proof of your relationship to the requesting relative.  Approval of the immigrant visa petition confirms a foreign national's eligibility but does not guarantee an immediate visa will be available to you.  

  2. The next step will be for the Department of State to determine if an immigrant visa number is immediately available to you, even if you are already in the United States. When an immigrant visa number is available, it means you can apply to have one of the immigrant visa numbers assigned to you. You can check the status of a visa number in the Department of State's Visa Bulletin.  

  3. If you are already in the United States, you may apply to change your status to that of a lawful permanent resident after a visa number becomes available to you, using Form I-485, Application to Register Permanent Residence or Adjust Status.   This is one way you can apply to secure an immigrant visa number.  

  4. If you are outside the United States when an immigrant visa number becomes available, you must then go to the U.S. consulate servicing the area in which you reside to complete your processing. This is the other way to secure an immigrant visa number.

Eligibility Requirements

  1. The sponsoring relative must meet certain criteria before they may sponsor your application to become a LPR:

  2. They must be either a U.S. Citizen or Lawful Permanent Resident of the U.S. and be able to provide documentation demonstrating that status.

    • If the sponsor is a USC, they may petition for the following foreign national relatives to immigrate to the U.S.:

    • Husband or wife

    • Unmarried child under 21 years of age

    • Unmarried son or daughter over 21

    • Married son or daughter of any age

    • Brother or sister, if the sponsor is at least 21 years old, or

    • Parent, if the sponsor is at least 21 years old.

  3. If the sponsor is a Lawful Permanent Resident, they may petition for the following foreign national relatives to immigrate to the U.S.:

    • Husband or wife, or

    • Unmarried son or daughter of any age.

Quotas (Numerical Limitations)

Whether a foreign national is able to become a LPR will also be controlled by whether he falls within the quota requirements.  The law exempts from the numerical limitations "immediate relatives," defined as "children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizen shall be at least 21 years of age." See INA § 201(b)(2)(A)(i).  It is worth noting that "child" is defined generally as an unmarried person under the age of 21.  See INA § 101(b)(1).  Under the statutory definition, a married person, or person over 21, would be a "son or daughter" rather than a child.

The quota for family immigrants is set at 480,000 less the number of immediate relative visas issued, with a minimum of 226,000 reserved for non-immediate relatives.  See INA § 201(c)(1).

Preference Categories

As stated above, the "immediate relative" (i.e., spouses, parents, and children of a USC) category is not subject to numerical limitations.  Other relationships, which are subject to the quota system, are divided into four preferences:

  1. First Preference:  Unmarried sons and daughters of U.S. Citizens (INA § 203(a)(1));

  2. Second Preference:  Spouses and children of LPRs (INA § 203(a)(2)(A)) and unmarried sons and daughters of LPRs (INA § 203(a)(2)(B));

  3. Third Preference:  Married sons and daughters of U.S. Citizens (INA § 203(a)(3)); and

  4. Fourth Preference:  Brothers and sisters of U.S. Citizens (INA § 203(a)(4)).

The allocation of visas is completed by nationality as well as by the order in which the application was received.  The combination of nationality and order of application determines an applicant's "priority date."  A priority date is that date on which a person initially submitted documentation establishing eligibility for one of the preference categories.

You can check the current priority dates in the Department of State's Visa Bulletin.