Family-Based Immigration

Immediate Relatives of U.S. Citizens

The advantage of qualifying as an immediate relative for family-based immigration is that there is no annual numerical limitation, and, therefore, the immigrant visa is immediately available and there is no waiting time for the application. Immediate relatives of U.S. citizens (“USC”) include the following aliens:

1. Spouses of a USC;

2. Unmarried children under 21 years of age;

3. Parents of a USC (the USC must be at least 21);

4. Widow(er) of a USC if married for at least 2 years, petitions within two years of USC spouse’s death, not married, and was not legally separated from USC spouse at the time of his or her death;

5. Battered Spouse or Child. The spouse or chilled who is subject to extreme cruelty or battered may file the petition independently of USC/LPR spouse or parent.

Application Procedures for Immediate Relatives

Adjustment of Status
For permanent residence applications based on marriage to a U.S. citizen, where both individuals are in the United States, the foreign spouse may apply for permanent residence within the United States through a process called Adjustment of Status. To begin this process, the U.S. citizen spouse must submit an immigrant visa petition on Form I-130 to the local U.S. Citizenship & Immigration Services (USCIS) office having jurisdiction over the foreign spouse's place of residence. At the same time, the foreign spouse submits an application for adjustment of status on Form I-485, together with a number of other USCIS forms and evidence required by the immigration law. The foreign spouse may also apply for an Employment Authorization Card (EAD) and Advance Parole to allow him or her to work and travel while the application is pending. The burden is on the parties to establish the bona fides of the marriage, and the couple must prove that that the marriage was not entered into for the sole purpose of obtaining a green card. USCIS schedules an in-person interview for the couple, generally within 6 to 12 months, depending on the location of the filing. A decision whether to grant lawful permanent resident status (“LPR”) i.e. “green card” will usually be made at the interview. The couple may have attorney representation at the interview. There are numerous requirements that must be satisfied before the LPR can be granted. They may include, but not limited to, the following:

1. Proof of USC spouse’s citizenship;

2. Proof of foreign spouse’s legal entry to the U.S.;

3. Proof of bona fide marriage;

4. Proof of financial ability to support the foreign spouse once he/she becomes LPR;

5. The foreign spouse did not commit certain crimes that prohibit him/her from becoming LPR; and

6. The foreign spouse is not in immigration proceedings, including deportation, exclusion or removal proceedings.

Consular Processing
Where the couple has married abroad, the foreign spouse usually must remain abroad until obtaining approval of an immigrant visa by a U.S. embassy or consulate in the foreign spouse’ home country.
To initiate the immigrant visa application, the U.S. citizen spouse must submit an I-130 visa petition to either the appropriate USCIS office in the United States (if the U.S. citizen spouse resides in the U.S.) or directly to the U.S. embassy or consulate in the country where the foreign citizen spouse lives (if the U.S. citizen spouse also resides there). Depending on the filing jurisdiction for the visa petition, it could take several months to obtain the approval.
Once the visa petition has been approved, the foreign spouse will receive several mailings from the U.S. State Department's National Visa Center (NVC) and the U.S. embassy or consulate abroad. These mailings will inform the spouse of the items required at the immigrant visa interview abroad and will include various application forms. The foreign spouse will need to submit application forms together with the evidence and documents required by the application packet to U.S. embassy or consulate through NVC. Depending on the country of the foreign spouse’s nationality, it usually takes six months for the immigrant visa interview to be scheduled.

Conditional Residence
If a family-based permanent residence application is based on a marriage and the marriage is less than two years old when the foreign spouse becomes a permanent resident, the permanent residence will be conditional and the green card will expire after two years. Both spouses must submit a joint petition on Form I-751 to remove the condition within the 90-day period immediately preceding the expiration of the conditional residence. If the marriage has terminated by reason of divorce, death of the U.S. citizen spouse, or spousal abuse, the foreign spouse may apply for a waiver of the joint petition requirement, and file the petition of removal by himself.