Family-Based Immigration

Immediate Relatives and Family of U.S. Citizens

Immediate relatives of U.S. citizens are spouses, children, and parents.  “Children” are defined as unmarried and under 21 years of age.  For parents of a U.S. citizen, the petitioning son or daughter must be at least 21 years of age.  The definition of “immediate relative” includes widows of U.S. citizens, provided that the foreign national was the spouse of the citizen for at least 2 years prior to the citizen’s death and was not legally separated from the citizen at the time of his or her death.  In that case, the permanent residence petition has to be filed within 2 years after the citizen’s death and before re-marriage.

The advantage of qualifying as an immediate relative is that there is no numerical limitation or backlog for sponsorship.

The Family preference categories are:

1. First Preference: unmarried sons and daughters (any age) of U.S. citizens;
2. Second Preference: spouses and unmarried sons and daughters of lawful permanent residents;
3. Third Preference: married sons and daughters of U.S. citizens;
4. Fourth Preference: brothers or sisters of U.S. citizens.

The Visa Bulletin, which is released each month by the U.S. State Department, provides the cutoff dates in each of the above referenced categories. 

Spouses of U.S. Citizens

If the spouse of the U.S. citizen is already in the United States, the U.S. citizen needs to submit a visa petition and the non-citizen spouse can concurrently file an application for adjustment of status.  The burden is on the parties to establish a bona fide marriage.  The USCIS then schedules an interview and the timeframe depends upon the location.  If the marriage occurred less than two years before the non-citizen spouse is admitted as a U.S. permanent resident, a “conditional green card” is issued to the alien spouse.  In order to remove the condition on the alien spouse’s permanent residency, both spouses need to jointly petition to remove the condition within 90 days before the second anniversary of the alien spouse’s admission as a permanent resident.

If the spouse of the U.S. citizen is outside the United States, the non-citizen spouse usually must remain in her or his country until a green card is issued. 

On the other hand, if the parties are not yet married, then the foreign fiancé/e can enter the U.S. on the K-1 fiancé/e visa but is required to get married to the sponsoring U.S. citizen and file the adjustment of status application package for the green card within 90 days of entry.