What are Family-Based Immigrant Visas?
Family based visas are given to individuals who have a close relationship to a US Citizen or permanent resident. Unless an individual is an immediate relative (spouse, parent or minor (under 21) child of a US citizen), he/she is subject to an annual numerical quota limitation under visa issuance guidelines published identified monthly by the US Department of State. . The total number of visas available for non-immediate relative family sponsored immigrants is 480,000 annually. When the quota numbers are over subscribed for any year, the foreign relative must wait until the next fiscal year (October 1) and until the visa waiting list for their visa category becomes current before they can determine whether they have become eligible under that visa category.
Spouse, minor children under 21, or parent of a US Citizen (not subject to quota listed above). This category has an unlimited annual amount of visas available and can be utilized by a US Citizen who can meet the residency and financial requirements for sponsorship. There are several methods for filing this type of visa and each case should be reviewed on an individual basis. Again, legal advocacy strategy is critical, particularly for any interim trips to the US by the foreign national family member.
The list below is used by the US Department of State for qualifying various family based visa categories.
Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per- country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
In most situations, family sponsored cases begin with the filing of an Immigrant Relative Petition with the respective CIS Regional Service Center. Once that is approved, and the priority date is current for the appropriate category, there are two options for securing Resident Alien status for the family member.
Adjustment of Status – If the family member is in the US, and petition priority visa date is currently available, and assuming there are no bars to filing adjustment of status for the person, all paperwork is filed at a local CIS District Office. The family member MUST be physically present and residing in the US (no Canadian/Mexican commuters) to be eligible, and he/she will be unable to travel after filing without prior written CIS special approval. Work and travel authorization upon petition, filing, and approval is available as long as the case is pending.
Consular Processing – This involves filing all immigrant visa paperwork through the US Consulate of the employee’s citizenship or country of current legal residence. An interview and personal appearance at the Consulate for the entire family is required.
U.S. citizens and permanent residents who have family members living outside the United States can file petitions to help them immigrate (get a U.S. immigrant visa, which leads to a green card, or lawful permanent residence). This serves the U.S. policy goal of family reunification.
The application process to obtain an immigrant visa for your eligible family members will follow the same basic steps whether you are a U.S. citizen (USC) or a lawful permanent resident (LPR). We’re assuming your family member lives overseas; if he or she is already in the U.S., you’ll need to look into a different process, called "Adjustment of Status".
The procedure of helping someone get a green card requires great attention to detail, which is why many would-be petitioners choose to hire an immigration attorney. The actual processing time, however, will depend on a number of factors: your immigration status (USC or LPR) as the “petitioner”; the whereabouts of your family member (called the "beneficiary"), including the beneficiary’s country of origin; your family relationship; and the personal circumstances or situation of the beneficiary.
It is important to learn about this application process in advance, so that you’ll be able to plan for the various requirements, and strategize around the likely timeline.
Warning: The coronavirus or COVID-19 pandemic has resulted in long delays in every part of the immigration process, owing to government office closures to in-person visits as well as a Trump proclamation barring issuance of overseas immigrant visas, including to family members of permanent residents. Expect ongoing delays even after offices reopen.
Which Family Members Are Eligible to Immigrate to the U.S.
Potential beneficiaries of family-based petitions are classified into two categories: so-called “immediate relatives" of U.S. citizens and “family preference” relatives.
The immediate relatives of U.S. citizens are not subject to limitations on the number of immigrant visas (green cards) given out each year. This category includes the spouses (same-sex or opposite-sex) of U.S. citizens and their unmarried children younger than 21 years, their parents (after the U.S. citizen child has turned 21), and orphans adopted abroad or in the States.
Unlike immediate relatives, beneficiaries who fall into the “family preference” category are subject to annual quotas on visas, both an overall limit and a per-country allotment. Because more people apply every year than there are visas available, this often leads to long waits, particularly from countries with high populations and levels of interest in immigrating to the United States. In some instances, the waiting period may be relatively short; in others, the wait spans decades.
The “family preference” categories are the following:
First Preference (F1) - unmarried sons and daughters of U.S. citizens of any age, regardless of the son’s and daughter’s are. To be eligible under this classification, the beneficiary must be “unmarried” when the petition is filed, and remain so until receiving the green card.
Second Preference (F2) - spouses (same-sex or opposite-sex), minor children, and unmarried sons and daughters (age 21 and above) of permanent residents. Children who are either divorced or widowed are considered “unmarried”, hence, eligible under this classification. Those children who are 21 or over fall into a subcategory called 2B; they typically wait longer than other second preference relatives, who are in a subcategory called 2A.
Third Preference (F3) - married sons and daughters of U.S. citizens, and their spouses and minor children. If a beneficiary obtains a good-faith divorce during the long years of waiting for the visa, he or she will become eligible for an immigrant visa as an F1.
Fourth Preference (F4) - brothers and sisters of a U.S. citizen, and their spouse and minor children. Half-brothers and half-sisters as well as adoptive siblings are eligible under this category.
Starting the Immigration Process
The process starts with the U.S. citizen or permanent resident petitioner preparing and filing Form I-130, the Petition for Alien Relative. This form is issued by U.S. Citizenship and Immigration Services (USCIS) and available for free download on its website. Also see The I-130 Petition: Information for Family Sponsors.
One of the important questions on Form I-130 asks you to name the office where the beneficiary will either adjust status (available only if the person is lawfully in the U.S., with rare exceptions) or go for a visa interview (at a U.S. consulate or embassy in the beneficiary’s home country). Assuming your relative is overseas, he or she should choose the closest embassy or consulate that processes immigrant visas. Such information is usually available on the consulate's website.
The I-130 petition must be filed with copies of documents to establish that the petitioner is a U.S. citizen or a permanent resident (such as a U.S. passport or green card) and that a family relationship exists between the petitioner and the beneficiary (such as a copy of birth certificate or marriage certificate). Petitioners for a spouse must also include documents showing that the marriage is bona fide (real), not a sham to get a green card.
Some attorneys recommend that the petitioner also execute and submit the Affidavit of Support, Form I-864 and supporting documents with the I-130, rather than waiting until it is later requested.
File the I-130 petition with the USCIS Service Center having jurisdiction over your U.S. residence. Be sure to keep a copy of everything you submit, including forms, supporting documents, and checks or money orders (unless you pay by credit card). USCIS will, after receiving the I-130 petition and verifying that its complete, issue a receipt notice to the petitioner and the attorney, if any.
If USCIS determines that the submitted documents are insufficient, the petitioner will instead send the petitioner a Request for Evidence (RFE).
Once the petitioner has satisfactorily met the requirements, the USCIS Approval Notice will follow. The letter also provides information on where the case has been forwarded to.
The National Visa Center
For beneficiaries outside the U.S., or who fall into a preference relative category, the case will next be forwarded to the National Visa Center (NVC). This office will hold onto the preference relatives’ file until their waiting period is over and a visa has become available; in technical terms, their “priority dates” are current.
The filing date of the petition is the "priority date". The U.S. Department of State publishes the monthly Visa Bulletin, which shows the priority date being processed in the current month.
If a visa is immediately available, or has become available because the beneficiary’s priority date is current, the NVC will start processing the case. It will issue a series of forms and instructions to the immigrant.
An updated Affidavit of Support (Form I-864 with supporting documents) for each intending immigrant is required at this stage, as well as payment of applicable fees. The NVC will also direct the applicant to its website for guidance.
In addition, but also to satisfy the need to prove that the immigrant will not become a public charge (dependent on government assistance), he or she will need to fill out a Form DS-5540, the Public Charge questionnaire. It asks about things like education, skills, household size, and source of health insurance.
The applicant will be instructed to fill out the Form DS-260, “Online Immigrant Visa Application and Alien Registration Application.”
Once all documents, security checks, and fees have been completed or paid, the NVC will forward the case to the consular office abroad that was indicated on the Form I-130. The beneficiary will need to undergo medical examination, police clearance, and fingerprinting (biometrics). A notice for a personal interview will follow.
U.S. Embassy (Consulate)
One of the last steps in the process is for the immigrant to attend an interview with a consular official. The applicant should bring copies of all documents earlier submitted, plus all other proof (original, not copies) of the family relationship with the petitioner.
For a spousal petition, expect the consular officer to ask many questions about the personal relationship with the U.S. petitioner, to determine the bona fides of the union. Other questions will concern whether the alien is “admissible” (meaning has prior health, criminal, or other issues).
Assuming that all is in order, the visa will be approved. The consular officer will issue a sealed envelope containing all visa materials, which must be opened only by the officer at the U.S. port of entry. The consular officer will annotate the passport of the immigrating beneficiary showing the person's immigrant status and date of the approval.
Normally, the U.S. embassy will issue the passport stamp within a few weeks following the visa interview.
Arrival at the United States Port of Entry
For overseas beneficiaries, the last stage of the process is arrival at the U.S. port of entry. Although the U.S. embassy has already granted the immigrant visa, the last interview will actually be with an officer at the border (a Customs and Boarder Protection, or CBP agent).
That agent is tasked with determining whether the alien is indeed eligible to enter the country. The CBP officer may ask questions about prior convictions, serious illness, or any immigration violations. With this in mind, it’s best to be careful about answering, and consult an attorney with any last-minute questions.
Receiving the Actual Green Card
The Permanent Resident Card (Form I-551) is mailed to the beneficiary within a couple of weeks following the immigrant’s arrival in the United States.