Immigration and The Family

Part 2: Sponsorship by a Legal Permanent Resident

We suggest you first read "Immigration Processes. A brief review"

Be aware that confusion is very possible here.

Family immigration usually begins when a relative files a paper with the US Immigration Service. The paper is called a Petition and the person who submits it is called the Petitioner or the Sponsor. The person being sponsored (who benefits from the Petition) is called the beneficiary. The Priority Date is the date the petition is submitted to the BCIS.

Who in the family can be a sponsor?

Only certain family members can be sponsors. (We're talking about sponsorship by family members only not sponsorship by employers.) The sponsor must be either a US Citizen, see Part 1 or a US legal permanent resident green card holder, here referred to as Permanent Resident.

Which family members can a US Permanent Resident sponsor?

A Permanent Resident can sponsor a spouse or his unmarried child of any age. A Permanent Resident cannot sponsor a parent or a married son or daughter.

TABLE showing some of this information

Basic petition procedure

The sponsoring Permanent Resident submits a petition to the BCIS for the wife, husband, or child together with the required proof of the relationship and proof of the legal resident status. Approval of the petition allows the beneficiary and the beneficiary's family members to apply for an immigrant visa at a US consulate or, if in the US, to apply to the BCIS for adjustment of status to resident. The beneficiary's family members get derivative benefits since all petitions filed by permanent residents are preference petitions.

Derivative Status

Beneficiaries of preference petitions can give Derivative Status to their own families. Derivative status allows the beneficiary's family to get immigrant visas without having their own separate petition. As an example, if a Permanent Resident sponsors his wife (Family 2A), not only does the wife get a green card but also the wife's children (if under 21 and unmarried), all from the one petition for the wife. (Note: the wife's children are usually also the petitioner's children...but they don't have to be.)

A Permanent Resident sponsor usually files a separate petition for his under 21 year old unmarried children only if he is not filing a petition for the children's mother.

Permanent Resident Preferences

The beneficiary of an approved petition who is the wife or husband of a Permanent Resident will be in the Family 2A (F2A) preference. Children (if under 21 years old and unmarried) will also be in Family 2A. A son or daughter of an LPR (Legal Permanent Resident) who is over 21 will be in Family 2B (F2B).

(Trick question: In what preference is the married son or daughter of an Permanent Resident? .........Answer: none, a married son or daughter cannot be sponsored by an Permanent Resident. )

Recent quotas for Permanent Resident family preferences

The Family 2A preference (spouse or child under 21) has recently been about three years behind while Family 2B (son or daughter over 21) has been backed up with about a five year wait.

How Preferences Can Change

Family preferences can change. When a Permanent Resident petitioner becomes a US Citizen, petitions for family members are automatically changed to the categories for citizen sponsors (the beneficiaries go into Immediate Relative, Family 1, or Family 3 categories).

When the child of an Permanent Resident becomes 21 years old, the child is automatically dropped from Family 2A and put into Family 2B (which has a longer wait).

When a child gets married, that son or daughter drops from Family 2A or F2B to unqualified if the sponsor is a Permanent Resident.

What date determines what category a person is put into?

The critical date that determines how a person is treated for an immigrant visa is the date the person first enters the US with an immigrant visa (not when the visa was issued by the consul). If the beneficiary is already in the US, the critical date is the day on which the applicant's status is to be changed to permanent resident (not when the adjustment application was submitted.)

Optional Question: A child who was sponsored by his Permanent Resident father receives his immigrant visa from a US consul a month before his 21st birthday. The child delays his entry into the US until he arrives here exactly on his 21st birthday. Will he be allowed to enter and receive resident status? .........Answer: no, on his 21st birthday he will fall from Family 2A to the Family 2B category. If the preference quotas are typical, there will be a longer wait for Family 2B and his priority date will no longer be current. The son will be barred from entry and will have to wait until the Family 2B preference reaches his priority date (or his father becomes a US Citizen when the son will go into Family 1which has recently had no wait.)

Warning about family petitions and preferences. This is a very brief introduction to a very complex area. We have not discussed any of these topics in depth nor have we discussed special relationships such as step-children, half-brothers/half-sisters, adopted children. Be careful, ask questions...make sure you understand the system before acting ...and get good advice...

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© Richard Madison 2003

Law Office of Richard Madison