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:

1. Unmarried children (over the age of 21), of U.S. citizens;
2. Spouses and children (under the age of 21) of lawful permanent residence;
3. Married children (over the age of 21), of U.S. citizens; and
4. 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.