A BRIEF LOOK AT HOW FAMILY IMMIGRATION WORKS

Immigration and The Family

Part 1: Sponsorship by a US Citizen

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

This can be fairly complicated so you are warned: 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. A sponsor must be a legal resident (green card holder) or a US citizen. Here in Part 1, we'll discuss US Citizen sponsors. (We're talking about sponsorship by family members only not by employers.) For information about sponsorship by Permanent Residents, see Part 2

Which family members can be sponsored by a US Citizen?

A US Citizen can file a petition for a spouse, child, or parent.

TABLE showing some of this information

Immediate Relatives

The Spouse (husband or wife), the child (if under 21 years old and unmarried), and the parent of a US Citizen are called Immediate Relatives. They are the relatives of a US Citizen who are exempt from waiting for immigrant quotas. There is never a waiting list or a shortage of immigrant visas (green cards) for Immediate Relatives. They do not appear in the Visa Bulletin preference quota lists since the quota preference system does not apply to Immediate Relatives. They are admitted to permanent residence without any numerical or national limitation.

Basic petition procedure for immediate relatives of US citizens

The US Citizen sponsor submits a petition to the BCIS for each Immediate Relative being sponsored together with the required proof of the relationship and proof of the citizen status. Approval of the petition allows the beneficiary 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 without regard to quotas or waiting lists.

US Citizen Preference Cases

A US Citizen can also sponsor a son or daughter who is 21 years old or over, a married son or daughter of any age, and a brother or sister. These are not Immediate Relatives. They come under the immigrant quota preference system. The 21 year old or over unmarried son or daughter will be in the Family First preference (F1). The married son or daughter of any age will be Family 3 (F3), and the brother or sister will be Family 4 (F4).

Technical Note: The difference between a "Child " and a "Son" or "Daughter."

In US immigration law when a child turns 21 or gets married, the child becomes a "son" or daughter" and is no longer a "child." A "child" is defined as being under 21 and unmarried. Despite this technical definition, in this discussion we'll sometimes refer to the offspring of a sponsor as a "child" no matter what age or marital status.

Recent quotas for citizen sponsored family preferences

Recently, the preference for an unmarried son or daughter of a US Citizen (Family 1) has had a backlog of about a little over a year (Mexico is about 5 years behind and the Philippines is about 11 years.) The preference for married sons or daughters (Family 3) now has a waiting list of about 3 and a half years (except for Mexico and the Philippines which is longer.) The wait for a visa for the brother or sister of a US Citizen (Family 4) has historically been so long as to make it almost useless as a means to immigrate. It has a backlog of about ten years with longer waits for India, China, and the Philippines.

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 their own separate petition. As an example, if a US Citizen sponsors his married son (Family 3), not only does the married son get a green card but also the son's wife and children, all from the one petition for the son.

Only preference petition beneficiaries get derivative status. Immediate Relatives are not in the preference system so they do not get derivative benefits. Because of this, the US Citizen sponsor must file a separate petition for each Immediate Relative.

How Preferences Can Change

Family preferences can change. When an Legal 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 a US citizen becomes 21, the child is automatically changed from Immediate Relative to Family 1 status.

When a child gets married, that son or daughter drops from Immediate Relative (or Family 1 if he/she was already over 21) to Family 3.

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 adjusted to permanent resident (not when the adjustment application was submitted.)

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