Family or Marriage-Based Permanent Residence
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Historically family reunification received favored status under U.S. immigration laws. The Immigration and Nationality Act, allows for close relatives of U.S. citizens and legal permanent residents to immigrate to the United States. The ease and speed in which this can be accomplished depends on the relationship of the family members, whether the sponsor is a U.S. citizen or a Lawful Permanent Resident (LPR), and, sometimes, the country where the family member is located.
Preliminarily, the Immigration and Nationality Act (INA) creates two groups for family members: immediate relatives and family-based preference categories.
In the “immediate relative” category, the petitioner must be a U.S. citizen (not an LPR) and the eligible family members include the following:
- Spouse of U.S. citizens;
- Unmarried minor children of U.S. citizens;
- Parents of U.S. citizens over age 21.
Procedurally, the immediate relative category has advantages over the preference categories. There are no caps or quotas on the number of visas available each year. Further, if they entered the United States legally, “immediate relatives” are exempt from certain “bars”, such as unauthorized employment, overstaying their time of admission, or violating their specific nonimmigrant status.
On the other hand, spouses and children of immediate relative immigrants – unlike those of preference aliens – do not obtain “derivative” status. In other words, if a person immigrates as an immediate relative parent of a U.S. citizen, that person’s spouse or minor children would not also automatically qualify for immigration visas, whereas a spouse or minor child of a preference alien would automatically be eligible.
The family based categories
The family members who don’t fall into the “immediate relative” classification will be subject to numerical limitations, which vary depending on which of the preference categories (described below) applies.
Note: “Sons and daughters” vs. “children” – Once a child is either married or over the age of 21, he or she is no longer a “child” for purposes of the INA. The statute instead refers to these offspring as “sons and daughters.”
FIRST PREFERENCE - Unmarried sons and daughters of U.S. citizens. While children (i.e., unmarried, under 21) of U.S. citizens are considered “immediate relatives”, unmarried offspring who are 21 or older will fall into the Family One category. The waiting period in this category is currently over 10 years for Mexico, over 14 years for the Philippines, and approximately four years for most other countries.
SECOND PREFERENCE - Spouses, children, and unmarried sons and daughters of lawful permanent residents (LPR). Spouses and unmarried minor children of LPRs (“Family 2A”) are subject to delays of over four years (over seven for Mexican nationals). The wait for unmarried “sons and daughters” of LPRs (“Family 2B”) is nearly 10 years (over 13 for Mexican nationals).
THIRD PREFERENCE - Married sons and daughters of U.S. citizens. For all countries except Mexico and the Philippines, the waiting period is over seven years. For Mexico and, especially, the Philippines, the time interval is substantially longer.
FOURTH PREFERENCE - Brothers and sisters of U.S. citizens. This category has tremendous delays – nearly 12 years – for all countries. The waiting period for the Philippines is over 20 years.
Conditional permanent residence for spouses
If a party obtains an immigrant visa or lawful permanent residence based on marriage as either an immediate relative or a Family 2A beneficiary, and if the marriage is less than two years old, that individual is granted a conditional permanent resident status. This conditional status lasts for two years from the date that the person becomes a lawful resident, not two years from the original marriage date.
The person must petition to remove the conditions of their status. If the parties are still married, they can jointly petition to remove this conditional status within the 90-day period before the two-year anniversary of the grant of conditional status. If a joint petition cannot be filed, the conditional resident can file for a waiver in certain circumstances, including an intervening divorce (assuming the marriage was entered into good faith).
Children who obtain status as either a “child” or “stepchild” based upon marriage of less than two years are also conditional residents and must file to have their conditional status removed. Where the parent is also a conditional resident, the parent can include the child in his or her application.
Affidavit of support
A legally enforceable Affidavit of Support (Form I-864) must be completed by U.S. citizens and LPRs who sponsor family members as immigrants. The law requires the sponsor to demonstrate an income level at or above 125 percent of the federally established poverty line.
If the sponsor’s household income does not meet the income requirements, evidence of assets, such as cash in savings accounts, stocks, bonds, or property, may be considered in determining the sponsor’s ability to support the immigrant. If the sponsor cannot meet the required income level based on income and assets, another person may serve as a joint sponsor.
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