Family Based Immigration
This article provides answers to common questions about family-based immigration. Specifically, it discusses getting a "green card" for a family member. This article was written by American Gateways.
United States citizens can petition for their spouses, parents, children, and siblings. Lawful permanent residents (green card holders) can petition for their spouses and unmarried children.
The steps and requirements for getting a green card differ for each person, and depend on the petitioner’s immigration status and relationship to the family member. There are several things that will be considered, such as:
- If the person requesting (the petitioner) is a U.S. citizen or a lawful permanent resident;
- The relationship between the immigrant and the U.S. citizen (or lawful permanent resident) petitioner (parent, spouse, brother, etc.);
- The country where the immigrant is from;
- If the immigrant is in the U.S. and how they entered (visa or unauthorized entry).
Immigration law is complicated and making mistakes can be serious. If your family member is in the U.S. without legal status, and files an improper application for a green card, they risk deportation. Talk to an immigration attorney before you do anything.
Follow these instructions to apply for a green card for an immediate relative of a U.S. citizen:
If your immediate relative has previously lived in the U.S. without any legal status, they may be ineligible for a green card, or they may require a waiver, depending on the circumstances. Consult an immigration attorney before you file any immigration application.
Follow this set of instructions from United States Citizenship and Immigration Services (USCIS) if you are a U.S. citizen applying for an unmarried child over 21, a married child, or a sibling over 21:
Follow the instructions at the link below from United States Citizenship and Immigration Services (USCIS) if you are a permanent resident applying for a spouse, unmarried child under 21, or an unmarried child over 21:
Yes. Each country is only allowed a certain number of visas per year.
There are often more visa petitions filed for citizens of China, India, Mexico, and the Philippines than the number of visas available to those countries. People from those countries often have to wait longer for a visa.
Current wait times can range anywhere from two to 24 years depending on your relative’s country of origin; your status in the U.S.; and the type of family relationship the immigration is based on. The wait is determined by your priority date and the Visa Bulletin.
Each month, the United States Department of State publishes a Visa Bulletin that lists the current priority dates for each category by country. The Visa Bulletin covers both family-based immigration and employment-based immigration. Only applicants in the family-preference category need to use the visa bulletin. Immediate relatives do not use the visa bulletin because visas are immediately available to those who qualify.
When checking the Visa Bulletin for your family member, you should find the family chart and the preference category (F1, F2A, F2B, F3, or F4) for the family member you are applying for.
- If your family member is immigrating from one of the countries listed at the top of the chart, find the priority date below that matches the preference category for your family member.
- If your family member is not from one of the countries listed at the top, use the dates in the “All Chargeability Areas Except Those Listed” category.
- If your priority date on your family petition receipt or approval notice is before the date listed in the Visa Bulletin, there is a visa available for your family member or they are able to submit their application.
- If your priority date in the I-130 receipt is on or after the listed date, there is not yet a visa available for your family member or they are not yet able to submit their application. You must keep waiting.
Keep in mind that the dates listed on the Visa Bulletin depend on the number of applications that were received from the different countries for the different categories. The dates on the Visa Bulletin do not move chronologically. For example, if on September 1, 2020, the priority date listed for your category is September 1, 2024, then that does not mean that a visa will be available in four years. For many months, the date on the Visa Bulletin will not change or only change a few days—and it may even move backward. In the example above, four years gives you a general idea of the wait time.
The two main routes to getting a green card are adjustment of status and consular processing. Both processes begin by filing the I-130 family-based petition with U.S. Citizenship and Immigration Services (USCIS). The I-130 alone does not give the immigrant any benefits, and you must continue with either adjustment of status or consular processing.
Adjustment of status is the process of applying for a green card with USCIS using form I-485. With adjustment of status, the immigrant remains in the U.S. while their application is processed. The immigrant may qualify for a work permit while they wait for their green card to be approved.
Consular processing involves submitting form DS-260 to the National Visa Center and then attending an interview at the U.S. consulate or embassy in the immigrant’s home country.
Whether or not an immigrant qualifies for adjustment of status or consular processing depends on several factors such as the applicant’s immigration history and the type of family relationship to the petitioner. Many immigrants are unable to choose the route they will take to get a green card. Some immigrants can choose and will consider factors such as the time and money required for each process.
Both processes are very complicated and can have many pitfalls. Talk to an immigration attorney before you do anything.
An immigrant who will become a “public charge” will be denied a green card unless the person qualifies for a waiver. Public charge refers to people who will become dependent on government benefits. The USCIS or consular officer will look at a “totality of the circumstances” when making the decision whether someone will be a public charge. They will consider the following factors about the immigrant: age, health, family status, assets, resources, financial status, education, and skills. The I-864 affidavit of support (sometimes called the sponsor or co-sponsor application) that is required for most family-based green cards is no longer enough on its own to prevent the officer from making a public charge finding.
Not all public benefits are included in the public charge rule. For example, emergency medical assistance and Children’s Health Insurance Program (CHIP) are not included in public charge. Immigrants who need and qualify for those benefits can use them without negative consequences to their green card application.
The rules about public charge are different whether an immigrant is going the adjustment of status or consular processing route. It is important to discuss any use of public benefits with your immigration attorney before moving forward with a green card application.