This type of immigration can cover the range from U.S. citizens who bring in immediate relatives such as a spouse, an unmarried child who is a minor, or a parent. Another category is immigration involving “preference” relatives, which includes unmarried sons or daughters of U.S. citizens or holders of a green card. This category also includes married sons and daughters of U.S. citizens or brothers and sisters of citizens. There are also provisions in place by the United States for bringing in dependents such as a spouse or child on an accompanying visa, depending on a particular visa holder’s circumstance.
Under the Immigration and Nationality Act, U.S. Citizens or Lawful Permanent Residents (holders of a green card) are allowed to sponsor immigration of a foreigner to the United States due to a family relationship. In this case, a U.S. consular officer issues the visa once a petition filed by a qualified family member has been approved by the USCIS. Following approval of the petition, the visa may be issued fairly quickly (in as little time as 90 days) or in a tome period as long as 25 years. This time period is based on which of the following categories apply and is also based on the home country of the immigrant. Note that not every family relationship will serve as the basis for applying for Lawful Permanent Resident status. The categories are as follows:
U.S. citizens are able to file a petition on the behalf of their:
1) Husband, wife, or a child who is under 21 years old (in other words, an immediate relative).
2)The parent of a child who is at least 21 years old, if the parent is a U.S. citizen (an immediate relative).
3)A son or daughter who is 21 years old or older as well as their children (this is called first preference).
4)A son or daughter who is married, at any age, as well as their children (a third preference).
5) Sibling as long as the U.S. citizen is 21 years old or more. This also includes the spouses and children of those brothers or sisters (referred to as a fourth preference).
In addition, a Lawful Permanent Resident can file a petition on the behalf of:
1)Their husband or wife, as well as their children under 21 years old (a second preference A category)
2)A child who is not married and is 21 years or older (referred to as a second preference B).
As seen above, in the category of Immediate Relative, there is in effect no limit on the number of visas which can be issued in a year. There is also no waiting period except for the time required for the USCIS to process the visa petition. Pursuant to Section 245(a) in the Immigration and Nationality Act, the U.S. citizen is able to petition on behalf of an
immediate relative, and can adjust the status in the United States, presuming the alien has entered the U.S. in a legal manner. According to Section 245(i), it is possible for the U.S. citizen to petition on behalf of an immediate relative and can adjust their status in the United States, including in circumstances where the relative has fallen out of status, has worked without having permission, has been admitted to the U.S. in transit, has entered the U.S. as a crewman, or has been admitted to the U.S. using the visa waiver program.
Regarding aliens who are not immediate relatives, these people are classified in one of four possible limited family-based preferences. A visa will not be available immediately in these categories because there is a limit on the number of visas issued per year and more aliens desire a visa than there are visas available currently. As a result, a longer waiting period may occur before a visa can be issued. Once the application is received by the USCIS, the filing date will be noted as well as the “priority date” of the application. This applicant has to wait until the priority date is current before filing for an adjustment in status, or before applying for an immigrant visa.
THE CHILD STATUS PROTECTION ACT: The Child Status Protection Act became law on August 6, 2002 and addresses problems of minor children who lose their eligibility for some U.S. immigration benefits because of delays in U.S. immigration processing. Prior to that, the child’s eligibility to acquire a visa or to be a part of his or her parent’s application depended on the age of the child when the child’s alien relative’s petition was approved, as opposed to the time of filing the petition. But using this system created tremendous delays and backlogs in processing; often a child reached 21 prior to the ability of the U.S. immigration system to adjudicate the petition.
This meant the child would lose eligibility to receive an immediate relative visa or be considered part of the parent’s application due to “aging out” (turning 21 years old). Accordingly, the petition of the child might have automatically been moved into a lower preference category or in some cases the child might need to submit a petition of their own, which could cause years of delays, potentially making them ineligible for the visa.
Under the new act, determining whether an unmarried son or daughter of U.S. citizens is classified as an “immediate relative child” (in other words under the age of 21) is determined by the age of the alien child when the Petition for Alien Relative (Form 1-130) was actually filed on behalf of them. This differs from the previous method of basing the determination of eligibility on the date the petition was adjudicated.
Also, under this new law similar determinations are made in cases of permanent resident parents who naturalize subsequent to filing a petition for their son, daughter, or where the citizen parent files a petition for their married sons or daughters when these children later file for a divorce. In the first case, determination of age will be based on the time of the parent’s naturalization. In the second case, the age of the alien beneficiary is determined by the date of the divorce.
In the case of children whose parents are legal and permanent residents, or who are accompanying or following them in order to join on a petition for an immigrant visa, eligibility will be established depending on the date the visa is available but it only applies if they seek permanent resident status during the first year of the availability.
Furthermore, according to the new law, age-out occurrences are protected for alien children when they accompany or follow their parents when they have filed for refugee or asylum status.
The last provision of the new law states that a family-sponsored petition by an unmarried alien son or daughter when their permanent resident parent has since become a naturalized U.S. citizen will convert to a petition for the unmarried son or daughter of an actual citizen of the United States, unless the child elects another manner.
Attorney Ayesha Chaudry is experienced in family immigration matters and has helped clients in New York and Connecticut with family immigration.
