New York Licensed Immigration Attorney For All Your Family Based Immigration Needs
The United States has a long history of helping families reunite and build their lives within the same community. A huge part of our immigration system is built around the idea that families should be together. Having that longstanding history, however, does not mean it is an easy process. Family-based immigration has strict rules and deadlines that must be followed. A mistake can delay the process or result in a sad outcome for you and your loved ones.
We understand family-based immigration law and how it can impact families and communities working to help our clients and their family members meet deadlines and file immigration petitions that are completed timely, properly, and sufficiently. We are proactive and identify issues to be addressed immediately to avoid delays.
What is Family-Based Immigration?
Family-based immigration is part of the visa system that allows a U.S. citizen or permanent resident to sponsor non-citizen family members so that the latter can join the family in the United States. Through this program, visa holders can also lawfully work, attend school, and enjoy other rights and freedoms that U.S. citizens and permanent residents enjoy.
There are three types of family-based visas, explained in more detail below:
- Immediate relative of U.S. Citizen;
- Family preference of U.S. Citizen or Lawful Permanent Resident; and
- Fiancé of U.S. Citizen.
If approved, these visas are a path to permanent residency, also known as green card holders.
1. Immediate Relatives
The immediate relative category includes any of the following immediate relatives of a U.S. citizen:
- Spouses
- Widows or widowers
- Unmarried children under 21 and adopted children
- Parents
Immediate relative visas are prioritized. There’s no cap or limit to the number of visas issued each year in this category.
The bars to adjustment are also more flexible when it comes to immediate relative visas. This means that factors that otherwise might disqualify an individual from adjusting their status to permanent residence (such as overstaying their visa or engaging in unlawful employment) do not apply.
2. Family Preference
The family preference category is for extended family members of U.S. citizens, as well as immediate and extended relatives of U.S. permanent residents.
For U.S. citizens, the family preference visa includes:
- Unmarried children aged 21 or over
- Married children
- Siblings
For U.S. permanent residents, the family preference visa includes:
- Spouses
- Unmarried children
The number of family preference visas available is capped each year, resulting in long wait lists. The Department of State publishes a Visa Bulletin monthly, and as part of this bulletin, updates on immigration petitions and green cards are given.
A U.S. citizen cannot use family-based immigration petitions for other relatives, such as grandparents, aunts, uncles, cousins, and in-laws.
3. Fiancé of a U.S. Citizen
A fiancé(e) visa—or K-1 nonimmigrant visa—allows a U.S. citizen to bring their foreign citizen fiancé to the United States so they can marry. It’s a temporary visa, requiring the couple to get married within 90 days of the fiancé entering the United States.
The U.S. citizen is the sponsor of their potential spouse and is the one who files the petition. To apply for a K-1 visa as the sponsor:
- You must be a U.S. citizen, i.e., not a permanent resident or green card holder
- You must intend to get married within 90 days of your fiancé arrival in the United States
- You and your fiancé must be free to marry, i.e., you both must be currently unmarried, cannot be underage, and cannot be related by blood
- You met in person at least once in the two years before filing your petition
- You must demonstrate that you can financially support your fiancé
For a list of common questions related to the fiancé(e) K-1 nonimmigrant visa please click here.
Three Common Challenges to Family Immigration
The largest percentage of lawful permanent residents in the United States comes from family-based immigration. However, the process is not without its challenges.
1. Visa Caps
While there are an unlimited number of visas for immediate family members, family preference visas are subject to annual caps. This means there can be substantial backlogs and lengthy wait times (years or even decades) for extended family members wanting to immigrate to the United States.
2. Insufficient Evidence
Evidence of a qualifying relationship is necessary for both immediate family and family preference visas. This evidence is especially important when it comes to spouse applications, where the petitioner must demonstrate a bona fide marriage. Gathering sufficient evidence of a relationship can be challenging, especially where official records are limited due to things like lack of rules or policies to maintain records or things like a war, where records have been destroyed.
3. Does Not Include All Family Members
Other extended family members such as grandparents, aunts, uncles, cousins, and in-laws are not eligible for immediate family or family preference visas. People often assume that family-based immigration applies to any and all family members. They blindly go through the process, ultimately wasting time and resources, only to file the wrong paperwork. Alternative visa pathways need to be found for these relatives.
