As the name suggests, family-based immigration establishes legal residency in the United States through family relationships. Because employment-based immigration is generally limited to professionals, family-based immigration is often the only option for many people who wish to live in the United States permanently. If you or a family member is considering immigrating to the United States, an experienced immigration lawyer can explain your options and guide you through the process.
Two Types of Family-Based Visas
Family-based immigration requires that the foreign national be sponsored by a member of their family who is already a U.S. citizen or lawful permanent resident. The process requires that the family member file a petition, followed by the foreign national filing an application for an immigrant visa or adjustment of status to lawful permanent residence (a.k.a., a green card). There are two types of family-based immigration:
- Immediate relative. These are visas granted to a U.S. citizen’s close family members, specifically, a spouse, child, or parent. The United States does not limit the number of visas or green cards granted to immediate relatives.
- Family preference. These are visas granted to other family members of U.S. citizens or lawful permanent residents. Family members who qualify for a family preference visa would be married children, unmarried children who are 21 or older, or siblings. The United States limits the number of visas or green cards granted to these family members each fiscal year.
Your family’s options will depend upon the nature of the relationship and the status of the sponsoring family member. An immigration lawyer can explain which options are available to you and your family members.
Understanding Family Sponsorship
As mentioned above, family-based immigration requires that the foreign national be sponsored by a family member who is either a U.S. citizen or lawful permanent resident. It is important to note that the legal status of the sponsoring family member may determine whether you qualify for an immediate relative visa or a visa based on family preference:
- U.S. citizens can petition for an immediate relative visa for their spouse, their children under the age of 21, or their parents. They can petition for a family preference visa for their married children, their unmarried children over the age of 21, or their siblings.
- Lawful permanent residents can only petition for family preference visas for their spouses and unmarried children.
As you can see, fewer options are available when the sponsoring family member is a lawful permanent resident. In addition, the immigration process may be longer for a family preference than an immediate relative visa because the number of family preference visas is limited each year leading to possible backlogs.
Marriage-Based Immigration
Both U.S. citizens and lawful permanent residents can sponsor their spouses. U.S. citizens can sponsor an immediate relative visa for their spouse, but lawful permanent residents are limited to family preference visas. As a result, the process can take longer and be more frustrating for lawful permanent residents than for citizens.
Foreign nationals who obtain permanent residence fewer than two years after their marriage are granted conditional permanent resident status and will need to apply to remove the conditions two years after they receive their green card. Those who obtain permanent residence in greater than two years after their marriage are given a 10-year green card and do not need to apply for removal of conditions.
K-1 Fiancé(e) Visas
U.S. citizens can also sponsor their fiancés for a visa. One of the requirements is that the couple have met in person at least once within two years of filing a fiancé visa petition. The U.S. citizen files a petition in the United States, and the fiancé then obtains the visa abroad at an embassy or consulate. The fiancé then enters the United States, marries the U.S. citizen within 90 days of their entry, and then applies for a green card based on their marriage.
VAWA Self-Petitioners
If you or your child have been abused by a U.S. citizen spouse or family member, you may be able to self sponsor through the Violence Against Women Act, also known as VAWA. Not all abuse is physical. You do not need to have reported your U.S. family member to law enforcement but you will need to provide some evidence of abuse. If your VAWA self-petition is approved, you may then apply for permanent residence. Whether you qualify for VAWA is highly dependent on the facts of your case, and an experienced immigration attorney can help make sure you’re filing a strong case.
Adjustment of Status versus Consular Processing
Foreign nationals who are already in the United States may be eligible to adjust their status to lawful permanent resident status without leaving the United States. If a foreign national is in the United States but is not eligible to adjust their status, then they may instead need to apply for an immigrant visa at an embassy or consulate abroad. Foreign nationals who are abroad may also need to be processed through an embassy or consulate abroad. Whether your family member may adjust or will need to consular process can be a complex question that is very dependent on the specific circumstances and can have significant consequences.
Contact Lotfi Legal to Discuss Your Family’s Immigration Needs
The immigration process can be challenging, even for immediate family members. We can help you understand your options and achieve your dreams of reuniting with your family. Call or email us today to schedule an appointment to discuss what we can do for you and your family.