U.S. immigration law provides a pathway for certain family members of U.S. citizens and lawful permanent residents (Green Card holders) to obtain a Green Card through what is known as the family preference system. This system allows U.S. citizens and LPRs to sponsor more distant relatives than immediate relatives, although these categories are subject to annual numerical limitations, potentially leading to waiting times based on priority dates and country of origin. This comprehensive guide will elaborate on the family preference categories, the eligibility requirements, and the process involved.

Understanding the Difference: Immediate Relatives vs. Family Preference

It’s crucial to distinguish between “immediate relatives” of U.S. citizens and those who fall under the “family preference” categories. Immediate relatives, which include spouses, unmarried children under 21, and parents of U.S. citizens (if the U.S. citizen is 21 or older), have an unlimited number of immigrant visas available each year. In contrast, the family preference categories are subject to annual limits set by Congress, which can result in visa backlogs.

The Four Family Preference Categories

The family preference system is divided into four categories, each with its own eligibility criteria and annual visa allocation:

1. First Preference (F1): Unmarried Adult Sons and Daughters of U.S. Citizens (21 years of age or older) and their minor children.
  • This category is for the unmarried sons and daughters of U.S. citizens who have reached the age of 21. Their unmarried children (under 21) can also be included as derivative beneficiaries.
  • Annual Limit: Approximately 23,400 visas, plus any visas not used by the fourth preference category.
2. Second Preference (F2): Spouses and Unmarried Sons and Daughters of Lawful Permanent Residents.

This category is further divided into two subcategories:

  • F2A: Spouses and Unmarried Children (under 21 years of age) of Lawful Permanent Residents.
    • This subcategory is for the spouses and unmarried children under the age of 21 of Green Card holders.
    • Annual Limit: Approximately 114,200 visas, with at least 77% allocated to spouses and children.
  • F2B: Unmarried Sons and Daughters (21 years of age or older) of Lawful Permanent Residents.
    • This subcategory is for the unmarried sons and daughters aged 21 or older of Green Card holders.
    • Annual Limit: The remaining portion of the second preference allocation after F2A visas are issued.
3. Third Preference (F3): Married Sons and Daughters of U.S. Citizens (any age) and their spouses and minor children.
  • This category is for the married sons and daughters of U.S. citizens, regardless of their age. Their spouses and unmarried children (under 21) can also be included as derivative beneficiaries.
  • Annual Limit: Approximately 23,400 visas, plus any visas not used by the first and second preference categories.
4. Fourth Preference (F4): Brothers and Sisters of U.S. Citizens (if the U.S. citizen is at least 21 years of age) and their spouses and minor children.
  • This category is for the brothers and sisters of U.S. citizens who are at least 21 years old. Their spouses and unmarried children (under 21) can also be included as derivative beneficiaries.
  • Annual Limit: Approximately 65,000 visas, plus any visas not used by the first three preference categories.

The Process for Obtaining a Green Card Through Family Preference:

The process generally involves the following steps:

1. Filing the Petition (Form I-130):
  • The U.S. citizen or lawful permanent resident (the petitioner) must file Form I-130, Petition for Alien Relative, with USCIS to establish the qualifying family relationship with the foreign national (the beneficiary).
  • A separate Form I-130 must be filed for each eligible family member seeking a Green Card.
  • U.S. citizens can petition for spouses, parents (if the citizen is 21 or older), children (unmarried and under 21), unmarried sons and daughters (21 or older), married sons and daughters (any age), and siblings (if the citizen is 21 or older).
  • Lawful permanent residents can petition for spouses and unmarried sons and daughters (regardless of age). They cannot petition for parents or siblings.
  • The filing location for Form I-130 depends on whether the petitioner resides in the U.S. or abroad, and whether the beneficiary is also filing Form I-485 concurrently. USCIS provides specific direct filing addresses based on these circumstances. Online filing of Form I-130 is also an option for many petitioners.
  • Required evidence to submit with Form I-130 includes proof of the petitioner’s U.S. citizenship or lawful permanent resident status and evidence of the family relationship (e.g., birth certificates, marriage certificates, adoption papers).
2. Petition Approval and Priority Date:
  • Once USCIS approves the Form I-130, they will send an approval notice (Form I-797).
  • The priority date is established when the Form I-130 is properly filed with USCIS. This date is crucial because it determines the beneficiary’s place in the visa queue within their specific preference category and country of chargeability (usually the country of birth).
3. Visa Availability:
  • Because the family preference categories have annual limits, a visa may not be immediately available after the petition is approved. The availability of visas is determined by the Visa Bulletin, a monthly publication by the U.S. Department of State that shows the cut-off dates for each preference category and country.
  • Beneficiaries in categories with backlogs must wait until their priority date becomes current before they can proceed with the next step of applying for a Green Card. The waiting times can vary significantly depending on the category and the applicant’s country of origin due to per-country limitations.
4. Applying for a Green Card (Adjustment of Status or Consular Processing):
  • The process for the beneficiary to apply for a Green Card depends on whether they are already in the United States or residing abroad.
    • Adjustment of Status (AOS): If the beneficiary is already legally present in the U.S. and a visa is immediately available in their preference category, they may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS to become a lawful permanent resident without having to leave the country. Concurrent filing of Form I-130 and Form I-485 is possible in some instances, particularly for immediate relatives but also sometimes when a priority date is current for a preference category.
    • Consular Processing: If the beneficiary is outside the United States, once their priority date is current, the National Visa Center (NVC) will notify them to begin the immigrant visa process. This involves submitting required documentation, paying fees, and attending an interview at a U.S. embassy or consulate in their country of residence. After the interview and approval, the beneficiary will receive an immigrant visa to enter the U.S. as a lawful permanent resident.
5. Supporting Documents and Requirements for Green Card Application:

Whether applying through AOS or consular processing, the beneficiary will generally need to provide various supporting documents, including:

  • Passport and birth certificate.
  • Marriage certificate (if applicable).
  • Police clearances from their country of origin and any other countries where they have resided for more than six months since the age of 16.
  • Medical examination report.
  • Affidavit of Support (Form I-864) from the petitioner (and potentially a joint sponsor) demonstrating they have the financial ability to support the beneficiary at 125% of the poverty level.
  • Evidence of lawful entry and current status in the U.S. (if applying for AOS).

Derivative Beneficiaries

The spouse and unmarried children under the age of 21 of the principal beneficiary in the family preference categories may also be eligible to immigrate as derivative beneficiaries under the same preference category and priority date. They generally must apply for their Green Card (either through AOS or consular processing) along with or after the principal beneficiary.

Important Considerations

  • Visa Availability and Priority Dates: Understanding the Visa Bulletin and tracking priority dates is crucial for family preference applicants due to potential waiting times. Visa retrogression (when a priority date moves backward) can also occur.
  • Age of Children: The Child Status Protection Act (CSPA) may provide some protection for children who age out (turn 21) while their Green Card process is pending.
  • Inadmissibility: Certain grounds of inadmissibility (e.g., criminal history, health issues) can prevent an individual from obtaining a Green Card. Waivers may be available in some circumstances.
  • Bona Fide Relationship: The qualifying family relationship must be genuine and not entered into for the primary purpose of obtaining an immigration benefit.
  • Affidavit of Support: The petitioner must demonstrate the financial capacity to support the intending immigrant. If the petitioner’s income is insufficient, a joint sponsor may be required.

Conclusion

The family preference system provides a vital pathway for U.S. citizens and lawful permanent residents to reunite with their families in the United States. While it offers broader eligibility than the immediate relative category, the annual limitations and potential waiting times require careful planning and understanding of the process. By familiarizing themselves with the specific preference categories, eligibility requirements, and the steps involved in petitioning and applying for a Green Card, families can navigate this complex system with greater clarity and work towards their goal of permanent residency in the U.S. Consulting with an experienced immigration attorney can provide invaluable assistance throughout this process.

Receive the latest news in your email
Recent Post