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Marriage and Family
A person seeking to permanently reside in the United States may acquire a green card through a family member. The family member becomes the alien’s sponsor and files the green card petition on behalf of the alien. In order to act as a sponsor the family member must be either a citizen or a lawful permanent resident of the United States
It is important to note that the status of the sponsor will impact the alien’s petition. For example, a United States citizen may sponsor a spouse, children, parents, brothers and sisters. A lawful permanent resident may only sponsor a spouse, children and unmarried sons and daughters. Thus, a lawful permanent resident should consider becoming a citizen if the objective is to obtain an immigrant visa for parents, married children or siblings.
The law divides family based immigration into the 5 following categories:
Immediate Relatives of Citizens
The Immediate Relative family based category permits green card petitions to be filed by United States citizens on behalf of their immediate relatives. For the purpose of this category immediate relatives means the children, spouses and parents of a United States citizen, except that, in the case of parents, the citizen must be at least 21 years of age. This means that a child born in the United States while the child’s parents were temporarily in the country cannot petition for an immigrant visa on their behalf until the child turns 21 years of age, even though the child is a United States citizen.
The law makes a distinction between children, and sons and daughters. Children are under 21 years of age, while sons and daughters are 21 years of age and over. Unlike the preference categories (discussed below) there is no numerical limitation for immediate relative petitions. This means that the petitions are processed immediately.
Unmarried Sons and Daughters of Citizens
The First Preference Family Based (FB1) category makes available 23,400 immigrant visas to unmarried sons and daughters of United States citizens. The fact that Congress has placed a numerical limitation on this and all other preference categories means that the alien may experience a delay prior to receiving a green card. As is the case with all family based immigration, an offer of employment is not a requirement although evidence of support is required prior to issuance of the green card.
Family of Lawful Permanent Residents
The Second Preference Family Based (FB2) category is the only category that permits lawful permanent residents to sponsor family members. Aliens eligible to receive an FB2 green card are immigrants:
1. who are the spouses or children of an alien lawfully admitted for permanent residence, or
2. who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence.
The first subcategory is allotted 77 percent of the approximately 115,000 FB2 green cards issued annually while the remaining 23 percent are made available to the second subcategory. This division results in a long delay for unmarried sons and daughters. As this category suggests, lawful permanent residents may not sponsor their parents, siblings or married sons and daughters. For this reason many lawful permanent residents decide to become United States citizens; and, by doing so they become able to sponsor more of their family members and will also benefit from the quicker processing times available to United States citizen petitioners.
Married Sons and Daughters of Citizens
The Third Preference Family Based (FB3) category permits a United States citizen to petition for an immigrant visa for the petitioner’s married sons and daughters. Congress has allocated 23,400 green cards to this category to be issued yearly along with any number not required by the first or second preference family categories. However, it is unlikely that there will be any spillover from the other categories because of the great demand for green cards in the FB2 category.
Brothers and Sisters of Citizens
The Fourth Preference Family Based (FB4) category permits immigrant visa petitions to be filed on behalf of brothers and sisters of United States citizens. Due to the large number of petitions filed in this category a backlog has developed. Estimates range anywhere from a nine to 20 year wait. Only 65,000 FB4 green cards are issued per year, and with the number of siblings wishing to obtain a green card, it is unlikely that the wait will decrease. The use of the FB4 category to facilitate the issuance of a green card is not a viable option.
A spouse or child accompanying or following to join a principal alien (i.e., the beneficiary) may be accorded the same preference and priority date as the principal alien without the necessity of a separate petition. However, a child of an alien who is approved for classification as an immediate relative is not eligible for derivative classification and must have a separate petition approved on his or her behalf.
It is always advisable to investigate the options that exist through family based immigration. These options may provide for the quickest and most cost effective means available.
If you would like to explore your specific green card options please send a request to us at:
Leibl and Kirkwood PC
12250 El Camino Real Suite 350 San Diego, CA 92130