Introduction to Family Immigration

Both U.S. citizens and lawful permanent residents (also known as LPRs or green card holders) can petition for family members to immigrate.

The Immigration and Nationality Act aims to reunite and preserve nuclear families, as well as to facilitate quick assimilation.

Which Relatives Can Immigrate?

Citizens can petition for the following categories of relatives:

Immediate relativesSpouse or
Unmarried child under age 21
Parent
1st preferenceUnmarried son or daughter over age 21 (and their children)
3rd preferenceMarried son or daughter (and their spouse and children)
4th preferenceSibling (and their spouse and children)

Citizens can also petition for their fiancé(e)s, and certain widow(er)s of citizens are eligible to immigrate.

LPRs can petition for the following categories of relatives:

2A preferenceSpouse
Unmarried child under age 21
2B preferenceUnmarried son or daughter over age 21

Spouses

In order to obtain immigration benefits available to a “spouse”, there must be a valid and subsisting marriage between the parties.

Generally, marriage is valid for immigration purposes if it is recognized by the law of the place where it occurs. This includes same-sex marriages. Marriages that are against public policy, such as polygamous or incestuous marriages, are not valid for immigration purposes even if valid in the place where it occurred. Proxy marriages are not recognized under the Immigration and Nationality Act, unless the marriage has been consummated. A marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. Religious ceremonies alone may not create a binding marriage in some jurisdictions. However, if a religious ceremony alone is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. A marriage ceremony might also be valid for immigration purposes, if the parties entered into it in good faith, believed themselves to be married and lived together as husband and wife.

Moreover, the marriage must be legally subsisting at the time that the immigration benefit is sought. The only exception to this requirement applies to certain widow(er)s of deceased U.S. citizens (discussed below). A marriage can be treated as legally subsisting even though the parties are separated, so long as they are still legally married. The courts have generally rejected the view must be “viable” to support entitlement to immigration benefits. It is now the administrative view that immigration benefits based on marriage may be sought even if the parties are separated, although the separation may be considered in determining whether the marriage was bona fide.

Widow(er)s of U.S. Citizens

A widow(er) of a U.S. citizen may file an immigrant petition under the following circumstances:

  • The widow(er) was married for at least two years to a U.S. citizen. (The deceased spouse need not have been a U.S. citizen for the entire two-year period, so long as he or she was a citizen at the time of death).
  • The petition is filed within two years of the death of the U.S. citizen.
  • The parties were not legally separated at the time of the U.S. citizen’s death.
  • The widow(er) has not remarried.

The widow(er) may include an unmarried, minor child in the petition, or a separate petition may be used.

Children

For the purposes of family-based immigration, a “child” is defined as follows:

  • a child born in wedlock;
  • a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
  • a child legitimated under the law of the child’s residence or domicile, or under the law of father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
  • a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;
  • a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or
  • certain orphans: a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a citizen and spouse jointly, or by an unmarried citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child’s proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

The parent-child relationship must continue to exist at the time that immigration process is completed. Accordingly, the child must be unmarried when granted permanent resident status, and the child must be under 21 years of age at that time, with the exceptions described in the Child Status Protection Act.

Parents

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old. “Parent” means a parent who is such by reason of his or her relationship to a “child” within the statutory definition of the term as described above. However, the “child” must have met the statutory definition at the time their relationship was established and the parent-child relationship must continue to exist at the time that the immigration benefit is sought.

Procedures

The immigration process typically starts with the U.S. citizen or LPR filing with U.S. Citizenship and Immigration Services (USCIS) a Form I-130, Petition for Alien Relative. (Battered spouses and children seeking classification as immediate relatives or in the 2A/2B preference categories can file the I-130 without the citizen or LPR’s assistance.) The Form I-130 must be accompanied by proof of the relationship.

There is no quota for immediate relatives to immigrate. But for other preference categories there are quotas, which have led to waiting lists reported in the State Department Visa Bulletin.

For an immediate relative, or for a relative immigrating in another category who is at the front of the waiting list, the next step is to apply for an immigrant visa at a U.S. Embassy or Consulate abroad. In the alternative, a relative physically present in the United States may be eligible to file with USCIS a Form I-485, Application to Adjust Status.

At the immigrant visa or Form I-485 stage, a key issue is whether the relative is ineligible (“inadmissible“) for crimes, immigration violations, health reasons, public charge grounds, etc. Exceptions (“waivers“) are granted in certain cases.

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