Family unification remains one of the principal cornerstones of our nation’s system of lawful immigration. Family-based immigrants fall into two main categories: Immediate relatives of U.S. citizens who are considered “Special Immigrants” and are not subject to quota restrictions; and “Preference Immigrants” who are admitted under a system of worldwide and country-specific quotas.

Special Immigrants include the parents, spouses, and unmarried minor (under 21 year-old) children of United States citizens.

Family-based Preference Immigrants are classified into one of the following preference classifications:

1st Preference/FB1

Unmarried adult sons and daughter of U.S. citizens

2nd Preference/FB2A

Spouses and unmarried minor sons and daughter of U.S. lawful permanent residents

2nd Preference/FB2B

Unmarried adult sons and daughters of U.S. lawful permanent residents

3rd Preference/FB3

Married adult sons and daughter of U.S. citizens

4th Preference/FB4

Siblings of U.S. citizens

Other provisions of the immigration law allow for the immigration of the qualified spouse of a recently deceased U.S. citizen.

The processing of a family based immigration is commenced with the filing of a Form I-130, Petition for Alien Relative, with U.S. Citizenship & Immigration Services. The I-130 is filed by the U.S. citizen or lawful permanent resident “petitioner” on behalf of the alien “beneficiary”.

With the exception of Special Immigrants who are not subject to quota restrictions, Family-based Preference immigrants are placed on a visa waiting list based upon their “priority date” which is the date of filing of the I-130 visa petition. In order to complete the immigration process, an immigrant visa must be available to the prospective preference immigrant under the quota system. Visa availability under the quota system is based upon worldwide and country specific demand, as determined according to a complex statutory formula administered by the U.S. Department of State. Monthly cut-off dates under the quota system are published in the monthly State Department Visa Bulletin which is available online at http:/travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

The immigration process for family based immigrants is completed either upon admission to the United States following issuance of an immigrant visa by a U.S. Embassy or Consular post outside of the United States or upon the approval of an Application to Adjust Status to Permanent Residence filed by an I-130 beneficiary who is in the United States and otherwise eligible to adjust status. All immigrant visas or adjustment of status applicants must establish admissibility by undergoing background checks, a medical examination, and answering a list of questions bearing on the numerous grounds of inadmissibility including criminal arrests or convictions, visa status violations, and membership in political organizations.

Upon successful completion of the immigrant visa or adjustment of status process, and, in the case of a visa applicant, entry to the United States, the Family-based immigrant becomes a lawful permanent resident of the United States, or “LPR”, eligible to live and work in the United States, and eventually, to apply for naturalization as a U.S. citizen.

Other Family-based Immigration Provisions and Issues

Fiancé/Fiancée or Spouse of U.S. Citizen:“K” nonimmigrant visas may be issued to expedite the admission of persons who are either engaged to be married to a U.S. citizen (K-1), or already married to a U.S citizen (K-3). The “K” visa process begins with the filing of a nonimmigrant visa petition on behalf of the sponsored spouse or spouse-to-be with U.S. Citizenship & Immigration Services, followed by the issuance of the “K” visa at a consular post outside of the U.S., and the completion of the adjustment of status process through USCIS following the alien’s arrival in the United States, and in the case of a K-1 visa holder, marriage of the parties within 90 days of entry to the U.S. of the immigrant spouse.

The Violence Against Women Act: Otherwise qualified victims of abuse committed by a U.S. citizen or lawful permanent resident ex-spouse may “self petition” for permanent residence.

The Marriage Fraud Act: Adopted in 1986, this amendment to the immigration statutes established special procedures and legal requirements intended to curtail what the U.S. Congress perceived to be the wide prevalence of marriages of convenience entered into solely for the purpose of conveying “green card” status to an alien spouse. Under these provisions persons who obtain immigrant status as a spousal immigrant within 2 years of marriage to a petitioning U.S. citizen or lawful permanent resident spouse, are granted “conditional resident” status for an initial 2 years and required to file a petition to remove conditions prior to the second anniversary of the green card grant. The process is intended to afford the agency an opportunity to “look back” on its decision to grant status to the immigrating spouse. USCIS gives high priority to the investigation of suspected “marriage fraud” cases and the removal of aliens found to be a party to such marriages.

Adopted Children: A U.S. citizen parent of may petition for the immigration of a child adopted while under the age of 16. As an anti-fraud measure, however, the law requires that the adopted child must have been under the legal custody of, and resided with the adopting parent or parents for at least two years prior to the filing of the visa petition on the adopted child’s behalf. The law now provides that the two-year period of legal custody and co-residence with the adopted child may have taken place before or after the adoption. The petitioner must document that the adoptive parent or parents exercised primary parental control during the period of residence.

Orphans: Other special provisions of allow the entry to the United States of orphans who have either been adopted abroad or who are brought to the United States for completion of the adoption process.

Complex Legal Issues, frequently involving the interpretation of foreign laws, often arise in connection with the immigration of adopted children, stepchildren and children born outside of a legal marriage.