These cases begin when the U.S. citizen or lawful permanent resident (the “petitioner”) files a Petition for Alien Relative asking that USCIS verify the qualifying relationship. The petition is marked for either “consular processing” or “adjustment of status” meaning that, once approved, the second part of the case, the application for an immigrant visa (green card), will proceed to be processed either at a U.S. consular post overseas or at a USCIS Field Office within the United States.
Family-based pathways exist for children, parents, and siblings of U.S. citizens, as well as for spouses and children of lawful permanent residents.
There may also be additional stages along the way, such as in cases requiring “waivers” of any grounds of inadmissibility that may apply. A person may be “inadmissible” to the U.S. for many reasons, meaning that they are not eligible to be admitted or to receive a visa unless they are able to obtain a waiver for that ground.
Other difficulties may include whether the qualifying relationship in fact exists (for the purposes of immigration), whether a child has become too old to qualify under a particular category, financial sponsorship, and other seemingly simple issues that may in fact be very complex legally. Each of these scenarios must be carefully addressed and analyzed at the outset before beginning a family-based case.
Each of these factors, and more, will be carefully considered at the outset of your case until you feel confident in a strategy going forward.
If we can establish that the family relationship exists, then the next step to consider is whether a visa is available. There are annual limits for all family-based categories except for “immediate relatives of U.S. citizens.” All other qualifying family relationships are called “preference categories”, subject to waiting times that depend on the number of visas available in that particular category.
For example, if the relationship is ‘child of a lawful permanent resident,’ we would check to see if all the visas for that category have been used. If not, there is no waiting period (once the petition is approved). If there are no visas remaining, then we try estimate the amount of time that it is currently taking for a visa to become available. For some categories it might be several months: for others, many years. These timeframes fluctuate frequently, and sometimes dramatically so. We therefore are very careful when factoring these into our strategy.
The category “immediate relatives of U.S. citizens ”includes spouses, parents, and children (under the age of 21) of U.S. citizens.
The remaining “preference categories” include:
- Unmarried children (over the age of 21), of U.S. citizens;
- Spouses and children (under the age of 21) of lawful permanent residence;
- Married children (over the age of 21), of U.S. citizens; and
- Siblings of U.S. citizens.
Minor children (under the age of 21) and/or the spouse of a beneficiary in a preference category can be included in the beneficiary’s application. However, this does not apply to the spouse or children of the beneficiary when the beneficiary is the immediate relative of the U.S. citizen.
For example, if a U.S. citizen is filing a case for their parent, the parent’s minor child (the petitioner’s sibling) can be included and apply for their own visa as a “derivative beneficiary.” This is possible because the derivative is a dependent of the principal beneficiary (the parent) and is not an immediate relative of the petitioner (siblings instead fall into a “preference category.”)
However, if the U.S. citizen is filing a case for their spouse, and the spouse’s minor child is young enough to be considered a stepchild of the petitioner, then that child would be considered an immediate relative of the petitioner and would require their own separate petition.
Visas are also available for fiancé(e)s of U.S. citizens. However, these are temporary (nonimmigrant) visas; a separate application for a green card must be filed after the fiancé(e) has entered on the fiancé(e) visa and within 90 days of the marriage. If the application is not filed within 90 days of the marriage, a new petition must be filed as an immediate relative of a U.S. citizen (as described above). When the relationship dissolves before the fiancé(e) obtains the green card, alternatives for the fiancé(e) are limited, but do exist––these situations must be dealt with very carefully.
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Professional and knowledgeable
I have to be honest, I retained Matt to clean up the mess that the previous lawyer made with my green card application. After my first consultation with him, I know I can trust him to take care of my green card process regardless of what happened. During our first consultation, we felt at ease knowing our options. He was very open about few different scenarios that could happen and provided us with solutions for each scenario. Truly professional and knowledgeable
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