Family-Based Permanent Residence

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Certain foreign nationals are eligible to permanently immigrate to the United States based on their family relationship with US Citizens or lawful permanent residents.

If the immigrant visa process is successful, the foreign national will be granted a lawful permanent resident card, or green card. Green cards are normally renewable and valid for a period of ten years, although newly-married spouses qualify for a two-year conditional green card.

With a green card, foreign nationals can stay in the U.S. indefinitely and pursue lawful activities of their interest, including employment and education.

Family-Based Immigration: Who is Eligible?

Family members of US citizens and permanent residents can qualify for green cards each year. The process varies based on factors like closeness of family relationship, and the immigration status of the sponsoring family member.

Immediate Family of US Citizens & Returning Residents

There are no numerical limits for immediate family members of US citizens, or for returning immigrants who were formerly legal permanent residents. This means that there is no maximum number of foreign nationals in these categories who can immigrate to the United States each fiscal year.

Immediate Relatives of U.S. Citizens include:

  • Spouse
  • Widow(er)
  • Unmarried children under 21
  • Parents, provided the sponsoring relative is 21 or older

In order to qualify as a returning resident, the foreign national must have lived in the United States previously as a lawful permanent resident. They must be returning to live in the US after a temporary visit of more than one year abroad.

How to Apply for a Green Card as an Immediate Family Member

The sponsoring US citizen relative must file a form I-130 to establish their family relationship to the foreign national. If approved and the visa is immediately available, the foreign national can then apply for their green card using form I-485. This can be don either through consular processing or adjustment of status.

Foreign national spouses of US citizens may enter the country on a nonimmigrant K-1 visa before applying for a green card.

Preference Categories & Numerical Limits

Foreign nationals who are not an immediate relative of a US citizen have a different process to apply for permanent residence. They are placed into preference categories based on their relationship to the sponsoring relative, and whether the relative is a US citizen.

Each preference category for family-based permanent immigration has a defined number of visas available per fiscal year.  These categories only apply to:

  • Non-immediate relatives of US citizens (which includes adult children)
  • Family members whose sponsoring relative is a green card holder

Below are more details on each preference category.

Family Preference Category Who is eligible? Yearly Numerical Cap
F1 Unmarried adult sons and daughters of US citizens (aged 21 and older) 23,400
F2(A) Spouses of green card holders; Unmarried children of green card holders (aged 21 or younger) 77% or more of 114,200
F2(B) Unmarried adult sons and daughters of green card holders 23% or less of 114,200
F3 Married sons and daughters of US citizens 23,400
F4 Brothers and sisters of adult US citizens (aged 21+) 65,000

How Preference Category Immigrants can Get a Green Card

The foreign national’s sponsoring US relative should first file an I-130 petition with USCIS, which establishes their relationship with the foreign national. The date they file the petition becomes the foreign national’s priority date if the I-130 petition is approved.

Next, the foreign national will need to review the visa bulletin and wait until their priority date becomes current. This means their priority date must be before the date listed on the visa bulletin for their category. Visa availability is determined by a number of factors including the foreign national’s:

  • Preference category
  • Country of nationality

Wait times for a current priority date can range from a few months to decades. Once their priority date is current, the foreign national can file form I-485 to become a permanent resident.

Where to File for a Green Card: All Categories

For both immediate relatives of US citizens and those in preference categories, there are two ways to apply for a green card. Based on where the foreign national resides at the time of filing, they can file:

  • Outside of the US: The foreign national can request consular processing, which is done through a US embassy or consulate in a foreign country
  • Within the US: The foreign national can apply for adjustment of status, which means a change in their US immigration status
    • Limited visa types qualify for adjustment of status, including K-1, employment visas, asylees, or refugees
    • Please be aware that even if they reside in the US, the foreign national may still need to file abroad in a consulate

Marriage to a US Citizen or Permanent Resident

When a foreign national marries a US citizen or green card holder, they are eligible to apply for lawful permanent residence. If the couple has been married for 2 years or less on the day the petition is approved, the foreign national will be eligible for a conditional two-year green card.

If the foreign national spouse is abroad at the time of petitioning, they may also apply for a K-3 nonimmigrant visa. When they enter the US, they may apply for a green card.

Conditional Permanent Residence

The purpose of conditional permanent residence is to prove that a marriage was entered into under good faith. In order to remove the conditional two year period on the foreign national’s green card, the couple must file a Petition to Remove Conditions on Residence with USCIS. They must prove one of the following within 90 days of the second anniversary of receiving the green card:

  • They are still married to the same US citizen or permanent resident
  • The marriage was entered into in good faith but it ended in divorce, annulment, or the death of the US citizenor permanent resident partner
  • The foreign national or their child were battered, or “subject to extreme hardship,” at the hand of the US citizen or permanent resident spouse, and the marriage was entered into in good faith

Children can also apply to remove the conditions of their permanent residence if there is a valid reason they cannot be included on their parents’ application.

If the couple is still married, they must apply together to remove the conditions of permanent residence. If the marriage has ended or there was abuse, the foreign national can apply on their own.

For more information and guidance on sponsoring a family member, please contact us at info@chugh.com

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