Certain U.S. citizens and lawful permanent residents can petition for certain family members to live permanently in the United States. Depending on a variety of factors, including the status of the petitioner, location of the beneficiary, they type of familial relationship between the petitioner and the beneficiary and the parties’ immigration and criminal history, the family based permanent residency sponsorship process may involve multiple steps and take many years to complete.
Family based Lawful Permanent Residency
I-130 Immigrant Visa Petition
The first step in any Family Based lawful permanent residency process is the qualified U.S. citizen or lawful permanent resident’s (“the petitioner”) submission of an I-130 Immigrant Visa Petition on behalf of their relative (“the beneficiary”).
In most cases, the I-130 Petition is filed with the U.S. Citizenship & Immigration Services (USCIS) in the United States. To have the I-130 Petition approved, the petitioner must demonstrate that they hold the required U.S. citizen or LPR status and that they have the required relationship with the beneficiary.
There are several different categories of possible Family Based visas, with the immediate relative category having an unlimited number of visas available annually, and the Family Based preference categories subject to annual visa limits, and frequently lengthy backlogs, depending on the preference category and country of nationality of the beneficiary, due to those limits.
Immediate Relatives include spouses and minor children (unmarried children under age 21) of U.S. citizens and parents of adult U.S. citizens.
The Family Based Preference Categories are as follows:
- Family Based 1st Preference (F1): Unmarried sons and daughters (over age 21) of U.S. citizens. 23,400 available visas each year.
- Family Based 2nd Preference (F2): Spouses, children (F2A) and unmarried sons & daughters of LPRs (F2B). 114,200 available visas each year.
- Family Based 3rd Preference (F3): Married sons and daughters (over age 21) of U.S. citizens. 23,400 available visas each year.
- Family Based 4th Preference (F4): Siblings of adult U.S. citizens. 65,000 available visas each year.
Once an I-130 Petition is approved and there is an immigrant visa number available, the beneficiary can proceed with their application for lawful permanent residency or immigrant visa.
Special Rules and Considerations for Vulnerable Populations
There are also special categories for certain beneficiaries who are the victims of domestic violence by their U.S. citizen or LPR petitioner to self-petition for LPR status under the Violence Against Women Act (VAWA). Widows and widowers of U.S. citizens may also be able to self-petition for LPR status if they meet certain criteria. Click here for more details.
Diversity Visa Lottery
The Diversity Immigrant Visa Program (also known as the Green Card Lottery) makes 50,000 diversity visas available annually, drawn from random selection among entries of individuals who are from countries with low rates of immigration to the United States. These countries change every year and are determined by the U.S. Department of State. Foreign nationals selected in the Diversity Visa Lottery and their qualifying family members may be eligible to apply for their Immigrant Visas at a U.S. Embassy abroad, or if they are already in the United States in a lawful nonimmigrant status, by filing an I-485 Application for Adjustment of Status.
These cases are generally very time-sensitive because the immigrant visa application or I-485 Application for Adjustment of Status must be approved before the close of the Fiscal Year of selection (i.e., before September 30th).
Fiancé Petitions
U.S. citizens may be able to petition for their foreign national fiancé to receive a fiancé visa (K-1) to come to the United States to marry the U.S. citizen petitioner. The U.S. citizen and K-1 fiancé must marry within 90 days of the beneficiary’s entry into the United States. The fiancé visa petition process involves three steps: 1) filing of the I-129F fiancé Visa Petition by the U.S. citizen petitioner; 2) the beneficiary’s application for a K-1 fiancé visa at a U.S. embassy abroad and 3) once in the United States in K-1 status, the beneficiary’s I-485 Application for Adjustment of Status.
Waivers of Inadmissibility
An individual who is eligible for LPR status or an immigrant visa may be able to file an Application for Waiver of Ground of Inadmissibility. This is generally based on extreme hardship to a qualifying U.S. citizen or lawful permanent resident family member of the applicant. Waivers of inadmissibility are often very complex and require careful planning and legal expertise.
I-601A Provisional Waiver of Inadmissibility for Unlawful Presence in the United States.
A beneficiary who is subject to the unlawful presence ground of inadmissibility under Section 212(a)(9)(B) of the Immigration & Nationality Act (INA) may be eligible to apply for a provisional waiver of inadmissibility (Form I-601A) after their I-130 Petition has been approved and before they depart the United States to attend their immigrant visa interview appointment at U.S. Embassy abroad.
This waiver is only available if the beneficiary’s only eligibility issue is unlawful presence. If the beneficiary has additional problems with their eligibility for an immigrant visa, including but not limited to fraud, criminal grounds or human smuggling, the beneficiary is not eligible for the I-601A Provisional waiver. Additionally, this type of waiver is only available to beneficiaries who have a U.S. citizen or LPR spouse or parent who will suffer extreme hardship if the beneficiary is denied their visa and forced to remain abroad for 10 years or more.
I-601 Waiver of Inadmissibility
A beneficiary who is subject to ineligibility grounds including but not limited to fraud, smuggling of people into the United States, certain relatively minor criminal grounds, and/or unlawful presence, may be eligible for a waiver to forgive the ground(s) of ineligibility. This waiver is filed on form I-601. The I-601 Waiver can be filed when a beneficiary is outside the United States after having been denied their Immigrant Visa or inside the United States after a determination by USCIS that they are ineligible for approval of their I-485 Application for Adjustment of Status.
Depending on the ground of inadmissibility, the beneficiary will need to show that their U.S. citizen or lawful permanent family members will suffer extreme hardship if they are denied their visa or adjustment.
I-212 Application to Reapply for Admission to the United States
Certain individuals who have been previously ordered removed or deported from the United States or who are subject to the so-called “permanent unlawful presence bar” under Section 212(a)(9)(C) of the INA may be required to file and have approved an I-212 Application to Reapply for Admission to the United States before they are eligible for approval of their Immigrant Visa application at a U.S. Embassy abroad.
It is important to understand that many grounds of ineligibility are not waivable, and it is essential that people considering the Family Based immigration process understand the potential grounds for denial and whether a waiver may be possible.
