Family Based Immigration

Historically, family reunification has been the basis of the principal policy of U.S. immigration law. Family-based immigration, a tightly regulated system, allows for close relatives of U.S. Citizens and Legal Permanent Residents (LPR) to rejoin their families here in America.

Family-based immigrants are admitted to the U.S. either as immediate relatives of U.S. citizens or through the family preference system.

Immediate Relatives are:

1. Spouses of U.S. citizens
2. Spouses of deceased U.S. citizens (under certain conditions)
3. Unmarried children (under 21 years of age) of U.S. citizens
4. Parents of U.S. citizens (petitioner must be at least 21 years old)

Persons who qualify as immediate relatives of U.S. citizens are so highly preferred as candidates for immigration that, unlike most other candidates, no numerical limitation is placed on the number of immediate relatives of citizens who may become permanent residents in any one year.

A person who marries a citizen can qualify for immigration in this category.  The marriage must not be a ‘sham,’ – that is, one entered into in order to obtain an immigration benefit.  The marriage must be legally entered into – that is, parties were free to marry, all prior divorces were legal, and the marriage formalities themselves are recognized as legal in the jurisdiction where the marriage occurred.

The spouse of a citizen whose marriage was created within two years prior to being granted permanent residence is granted residence on a conditional basis.  This is akin to a permanent residence in all respects – eligibility for employment, ability to travel freely in and out of the United States, accumulation of time toward compliance with residence and physical presence requirements for naturalization as a U.S. citizen- but a second filing will be required by husband and wife to ‘remove the conditions’ prior to the expiration of two years from their marriage before a permanent Green Card is obtained.

Spouses of deceased citizens qualify as immediate relatives for whom immigration may be sought under some circumstances.  In order to qualify, the alien must have been the spouse of the deceased citizen for at least two years and must not have been legally separated or divorced at the time of the citizen’s death.

Family Preference System

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000 for all applicants from around the world. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored preference limit. There are four Family Based Preference Categories and the numbers are currently distributed between:  CHINA-mainland born, INDIA, MEXICO, PHILIPPINES and the REST OF THE WORLD.

The present four family preference categories are as follows:

1. First Preference : Unmarried sons and daughters (any age) of U.S. citizens
2. Second Preference : Spouses, unmarried sons & daughters of LPRs
3. Third Preference : Married sons & daughters of U.S. citizens
4. Fourth Preference : Brothers & sisters of U.S. citizens

These preference categories are heavily backlogged with long waiting periods before family members can enter the US and be re-untied with their families. Unused visas (if any) from higher preference categories may be allocated to lower categories.

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.