Immigrant Visas

immigrant

Family Based

U.S. Citizenship and Immigration Services (USCIS)
Family Based Immigrant Visas

Certain immigrants who have a qualifying relationship to a U.S. citizen (USC) or lawful permanent resident (LPR) may be eligible to obtain residency through that relationship. Generally, there are five general categories of family members who may obtain residency through a close relative. Below is a list of each category and its basic requirements:

I. Immediate Relatives
II. First Preference (FB-1)
III. Second Preference (FB-2)
IV. Third Preference (FB-3)
V. Fourth Preference (FB-4)
1. Derivative Beneficiaries
2. Step-Children
3. Adopted Children
4. Orphans
5. Conditional Residence
6. Battered Spouses and Children
7. Widow(er)s

I. Immediate Relatives

This category is not subject to any numerical limitations, but is counted as part of the 480,000 visas allocated annually to family based immigration. The immediate relative (IR) category uses approximately 300,000 visas annually, leaving approximately 180,000 visas for the other family based categories. Increase in the IR category reduces the number of visas available for other family based preferences until a floor of 226,000 visas remains.

 

This category includes the following relatives:

  1. spouses of  U.S. citizens;
  2. minor children of U.S. citizens;
  3. parents of adult U.S. citizens (over age 21);
  4. widow(er)s of U.S. citizens .

II. First Preference (FB-1)

Twenty-three thousand four hundred (23,400) visas are allocated annually for this category plus any visas not used by fourth (4 th ) preference.  This category is for unmarried adult children (over 21) of U.S. citizens.

III. Second Preference (FB-2)

One hundred fourteen thousand, two hundred visas are allocated for this category plus any visas not used by first preference.  This category has two divisions, FB-2A and FB-2B.  The 2A division includes spouses and minor children of lawful permanent residents and receives 77% of the annual visa allocation for the FB-2 category. The 2B category includes unmarried adult children (over 21) of lawful permanent residents.  There is no provision in the statute for married children or parents of lawful permanent residents.

IV. Third Preference (FB-3)

Twenty-three thousand four hundred (23,400) visas are allocated annually for this category plus any visas not used by the first two preference categories.  This category includes married children of U.S. citizens.

V. Fourth Preference (FB-4)

Sixty-five thousand (65,000) visas are allocated annually for this category plus any not used by first three preferences.   This category includes brothers and sisters of adult U.S. citizens (over 21).  Brothers and sisters encompasses full siblings, half siblings and step siblings.  This category has a very long backlog, making it very difficult to bring siblings to the United States.  Applicants may want to consider using a series of immediate relative petitions, which although time consuming, might be more expedient than the fourth family-sponsored preference. For example, a U.S. citizen can sponsor a parent as an immediate relative, and the parent may be able to then sponsor a sibling of the original U.S. citizen as a child.

There are particular issues relating to the family preference categories that are important to mention here.

1. Derivative Beneficiaries

Each family-based preference category (excluding the IR category) allows spouses and minor children to immigrate based on a petition filed on behalf of the principal beneficiary.  Derivative beneficiaries, as such immigrants are called, are entitled to the same preference as the principal beneficiary whom they are accompanying or following to join.

2. Step-Children

Step-children of a U.S. citizen or lawful permanent resident are considered “children” for purposes of the family-based categories provided that the marriage that created the step-relationship took place prior to the child’s 18th birthday.

3. Adopted Children

Adopted children of a U.S. citizen or lawful permanent resident are considered “children” for purposes of the family based categories provided that the adoption took place prior to the child’s 16th birthday.  The specific requirements of a petition based on adoption are that the child must have been in the legal custody of the adoptive parent for at least two (2) years and that the child must have physically resided with the adoptive parent for at least two (2) years.  Children who obtain residency based on adoption may not later petition for their biological relatives.

4. Orphans

A U.S. citizen and spouse or an unmarried U.S. citizen who is at least 25 years old can petition to have an orphan child immigrate to the United States as an immediate relative. Petitioning for an orphan involves two distinct determinations. The first determination focuses on the ability of the prospective adoptive parent(s) to provide a proper home environment and on their suitability as parents. This determination is based primarily on a home study and fingerprint checks submitted with the advanced processing application. The second determination, based on the orphan visa petition concerns whether the child is an orphan under the Immigration and Nationality Act (INA).

A U.S. citizen and spouse or an unmarried U.S. citizen who is at least 25 years old can petition to have an orphan child immigrate to the United States as an immediate relative. Petitioning for an orphan involves two distinct determinations. The first determination focuses on the ability of the prospective adoptive parent(s) to provide a proper home environment and on their suitability as parents. This determination is based primarily on a home study and fingerprint checks submitted with the advanced processing application. The second determination, based on the orphan visa petition concerns whether the child is an orphan under the Immigration and Nationality Act (INA).

The specific requirements of an orphan petition are as follows:

  • The orphan petition must be filed prior to the child’s 16 th birthday;
  • The child must have been orphaned by the death or disappearance of, abandonment or desertion by or separation or loss from both parents. If one parent remains, that parent must be incapable of providing proper care for the child, and must, in writing, irrevocably release the child for emigration and adoption. The irrevocable release may be in an adoption decree agreed to by the parent.

5. Conditional Residence

Since 1986, when residency is granted to a spouse of a U.S. citizen or lawful permanent resident based on a marriage that is less than two years old, the residency is conditional. Conditional residence is granted for a period of two years.  A conditional resident must petition to remove the conditions on their residence within the three (3) months immediately preceding the expiration of their conditional residence.  The petition can be filed either jointly by the two spouses or as a waiver if the conditional resident is divorced or in the process of getting divorced. Failure to file the petition will result in expiration of the conditional residence and can result in initiation of removal proceedings by the Immigration Service.

6. Battered Spouses and Children

Family based immigration presumes that the petitioner is willing to aid the beneficiary in the process of immigrating.  Unfortunately, in an abusive relationship, the petitioner may exploit the beneficiary’s dependence as a means of perpetuating the abusive relationship.  To alleviate these situations, Congress passed several laws, the most significant of which was the 1994 Violence Against Women Act (VAWA).  VAWA allowed spouses and children who had been battered or subjected to extreme cruelty by a lawful permanent resident or U.S. citizen spouse or parent to self-petition for immigrant visas.  The VAWA was further expanded upon and strengthened by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) and VAWA 2000. Under the 1994 VAWA, there had been requirements that the battered spouse/child show that deportation from the U.S. would result in extreme hardship, that the battered spouse still be married to the battering spouse and that the battered spouse/child still reside in the U.S.  VAWA 2000 eliminated these requirements.  In addition, VAWA 2000 expanded the waivers and exceptions to legal bars that had previously kept battered spouses and children from filing successful self-petitions.  IIRAIRA introduced measures to prohibit Department of Justice employees from sharing information relating to a self-petitioner except for legitimate law enforcement purposes and from making adverse determinations on the self-petition based solely on information provided by the abuser or a member of his household.

7. Widow(er)s

The Immigration Act of 1990 expanded the definition of immediate relative to include the widow(er) of a U.S. citizen.  In order to qualify under this definition, the widow(er) must have meet the following requirements:

The widow(er) must have been married to the U.S. citizen spouse for at least two (2) years at the time of the citizen spouse’s death;

  • The couple must not have been legally separated at the time of the citizen spouse’s death;
  • The widow(er) must file a self-petition for residency within two (2) year’s of the citizen spouse’s death;
  • The widow(er) must not be remarried.

A non-citizen who meets the above requirements may self-petition for lawful permanent residency based on the marriage which was terminated by death of the citizen spouse.  As stated above, the self-petition must be filed within two years of the citizen spouse’s death.