A visa is a temporary document which permits an individual to enter into the United States and remain there for a specific period of time. Having a visa permits the visa holder to travel to a port of entry, airport, or land border. There are two main categories of visas in the United States: immigrant and nonimmigrant.
An immigrant visa, also known as a green card, is issued to individuals who desire to live in the United States permanently. In comparison, a nonimmigrant visa is appropriate for an individual who maintains a permanent residence outside of the United States but may wish to stay in the U.S. temporarily for activities such as:
- Tourism;
- Business;
- Medical treatment;
- Temporary work; or
- Temporary study.
A family immigration petition involves a person located in the United States petitioning (requesting) for a loved one in another country to relocate in the U.S. This is a common method of immigration for many non-citizen aliens. The process is complex and can involve different quotas and waiting periods. These figures depend on the immigration numbers from previous years.
The family immigration visa categories are divided in to several sub-categories. Each of these categories is associated with a preference in terms of wait lists and quotas. Generally speaking, immediate relatives and close members of the family are given preference over more distantly-related persons.
Who can Receive a Family-Based Immigration Visa?
A family-based immigration application requires at least two family members, one petitioner and one beneficiary. The petitioner is required to be a United States citizen or a lawful permanent resident. The beneficiary is required to be a foreign family member who is neither.
There are several ways in which an individual can obtain United States citizenship or status as a lawful permanent resident (LPR). After an individual obtains status as a lawful permanent resident or as a United States citizen, the individual may act as a sponsor for certain relatives in order to obtain a family-based immigrant visa.
If the petition is successful, the foreign family member will receive a green card and become a permanent resident themselves. Permanent resident status provides that the foreign family member will have the privilege of living and working in the United States permanently.
It is important to note that there are two categories of family members that are qualified to receive a family-based immigrant visa: immediate relatives and family preferences. The category of the family member determines the priority which the immigrant will receive in obtaining a green card. The immediate relative category is the most desirable.
How Long Does Family-Based Immigration Take?
Family-based immigration waiting times vary based on the category. F2B visa waiting time can be anywhere from 2 years to 7 years. F3 visa waiting time may range from one to ten years. F4 visa waiting time is usually within a year, but can take as long as ten years.
What is the Immediate Relatives Category?
There are an unlimited number of visas which are available to immediate relatives of United States citizens or permanent residents, which gives them special immigration priority. In contrast, the family preference categories have a limited number of available visas. This means that the immediate relative visa waiting time can be anywhere from six months to as many as twenty years to obtain a green card.
Immediate relatives of United States citizens or permanent residents include the following individuals:
- Spouses;
- Unmarried children under the age of 21;
- Orphans legally adopted abroad;
- Orphans to be legally adopted in the United States; or
- Parents over the age of 21.
If an individual seeking a green card does not fall into one of the previously mentioned categories, then they most likely fall into the family preferences category. In order for an individual to immigrate using the immediate relative category, there are several requirements which must be met, including:
- The United States citizen or permanent resident relative must petition the foreign family member. The sponsoring family member must file a Form I-30, Petition for Alien Relative, on behalf of the foreign national relative with the Department of Homeland Security. Any required fees must also be paid;
- A qualifying immediate relative relationship must be documented. This may include documentation proving familial relationships, birth documents, or any other required documents;
- The immediate relative must apply for a green card, either through consular processing or adjustment of status if they are already in the U.S. on a temporary visa;
- The U.S. citizen or permanent resident must promise to support the family member. A Form I-864, Affidavit of Support, must be filed on behalf of the beneficiary. The affidavit is to show that the beneficiary has adequate means of financial support and will not be likely to rely on the U.S. government for financial support. Generally, an income level that is at least 125% of the Federal poverty level will be sufficient; and
- The immediate relative must demonstrate that they do not pose a danger to U.S. society based on factors including:
- health;
- security;
- immigration violation; or
- criminal grounds.
What is the Family Preferences Category?
In contrast to the immediate relative category, there are only a limited number of visas available for the family preferences category. This category includes relatives that have a more distant relationship to the family member who is sponsoring their immigration visa.
The family preference categories are ranked as to immigration priority as follows and include:
- First preference: First preference in immigration priority is given to unmarried sons and daughters of United States citizens and their minor children. There are 23,400 visas allotted for this category;
- Fourth preference: Fourth preference is given to the brothers and sisters, their spouses and their minor children, of adult U.S. citizens. There are 65,000 visas allotted.
There are several categories of family members that cannot be directly petitioned, including:
- Grandparents;
- Grandchildren;
- Nephews;
- Nieces;
- Uncles;
- Aunts;
- Cousins; and
- In-laws.
In order for an individual to immigrate through the family preference category, the family member must meet the same requirements as immigrating through the immediate relatives category. They must also document a qualifying family preference relationship instead of an immediate relative relationship.
What Are Family-Based Immigration Applications?
United States citizens and permanent residents can assist their qualifying foreign relatives in petitioning for citizenship and permanent residency in the United States.
For a foreign relative to become a lawful U.S. permanent resident, the following general criteria must be met:
- The foreign national applying for a visa or green card must have a relative who is either a U.S. citizen or a lawful permanent resident of the United States. The applicant's relative must be able to show documentation of their status as a U.S. citizen or permanent resident, as well as proof of their relationship to the applicant
- The applicant's relative must prove their financial income is 125% above the poverty line for their entire family, including the applicant.
- If the relative does not meet this financial criterion, they can become a joint sponsor with another relative, or the applicant's assets can be taken into account
- If the applicant's relative is a U.S. citizen, they must prove that the applicant is their:
- Child under the age of 21 years
- Spouse
- Unmarried son or daughter over 21 years old
- Married son or daughter of any age
- Brother or sister of U.S. citizen (if the sponsoring relative is at least 21 years old)
- Parent of U.S. citizen (if the sponsoring relative is at least 21 years old)
- If the applicant's sponsoring relative is a U.S. permanent resident, they must prove that the applicant is their:
- Husband or wife
- Unmarried son or daughter of any age
If both the applicant and their relative meet these criteria, the petitioning process can begin.
Do Immigration Policies Change?
As previously discussed, immigration policies are constantly changing in the United States, depending upon circumstances such as:
- The current administration;
- Shifting viewpoints;
- The availability of funds; and
- Various other influences.
It is important to note that the process of obtaining a family-based immigrant visa may change in the future. For example, a recent change includes same-sex spouses being able to apply for family-based immigrant visas.
Other possible changes may include quota changes, or the number of family-based immigrant visas which are allocated each year, either for the family preferences category or the immediate relative category. If this occurs, the waiting period for obtaining a green card would also likely change.
There are opponents to the family-based immigrant visas process who refer to it as chain migration. They believe that the availability of family-based immigrant visas should be limited or abolished. If opponents succeed, immigration policies would limit the amount of individuals eligible to receive such visas or to become permanent residents would decrease. It is important to monitor the political issue of immigration when considering petitioning for a family-based immigrant visa.
In addition to these possible changes, the COVID-19 pandemic has also had an effect on immigration policies. In order to help contain the spread of the virus, jurisdictions have implemented new measures or to change existing ones often, even daily. These may include:
- Travel restrictions, which may include bans on foreign nationals from certain countries;
- Quarantine requirements which vary across the world. In some cases, the individual must provide negative COVID-19 test results or proof of vaccination have begun to replace quarantine requirements; and
- Health assessments. Health questionnaires and health assessments are not common pre-boarding requirements for international flights.
How Can A Lawyer Help Me With Family Immigrant Laws?
Assisting a family member with immigration can be a difficult task. You may wish to hire an experienced immigration law attorney for help with family immigrant laws. Your attorney can provide you with valuable legal advice as you play your part in the process. Also, a qualified lawyer can help represent you if you need to make an appearance or attend a meeting in an immigration court.
The U.S. immigration process is not simple. The immigration process may take many years to complete. Therefore, it is essential to hire an immigration lawyer for assistance with your family visa. It is important to consult with an attorney as early in the application process as possible. Your attorney can assist you through the process and ensure you meet all the requirements and your application is filled out completely and correctly.
