Family-Based Immigration Law
Methods of obtaining permanent residence: With few exceptions such as asylum or VAWA, the U.S. system of immigration is based on either a qualifying family relationship or a qualifying employment. The following is a very brief overview to give you the basic idea. Each category has its own body of law, and each case requires thorough review and analysis.
Family-Based Immigration: Only very specific relationships count as follows.
Immediate Relatives as defined by U.S. immigration law and not by your culture or custom, may apply for permanent residence without any waiting period, provided they are not subject to any grounds of inadmissibility. Immediate relatives refers only to: an adult U.S. citizen over 21 years of age petitioning for her parent, spouse, or unmarried minor children. That is all.
The definition of “child” is not as straightforward as you may think, and needs to be analyzed by a qualified attorney when talking about step-children, illegitimate children, and other cases. Note: there are no derivative beneficiaries of immediate relatives. This means that if a U.S. citizen over 21 years old is petitioning for his spouse and children, a separate petition must be filed for each individual. You may not include both the spouse and the children on one petition. Likewise, an adult U.S. citizen petitioning for his parents may not include them both on a single petition. A separate petition must be filed for each qualifying beneficiary.
Those specific other family relationships that qualify but are not considered immediate relatives all fall into the Preference System. All categories in the preference system are subject to waiting lines. The only other qualifying relationships are: a U.S. citizen over 21 years of age may petition for her adult children whether married or unmarried (but that would put them in a different category), and for her brother/sister; and an LPR may petition for his spouse, unmarried children under 21 years of age, or unmarried children over 21 years of age. NOTE: only U.S. citizens can petition for married children, parents, or siblings.
There may be derivative beneficiaries in these preference categories This means, for example, that when a U.S. citizen petitions for her sibling, the sibling’s spouse and minor unmarried children are also included in that petition. You will want to consult with an attorney to determine as a matter of long-term strategy the best way to pursue your individual case. For example, if an LPR petitions for his wife, and includes his minor children in that petition, they are subject to a long waiting line. Then the LPR becomes a U.S. citizen, and wants to change the classification of the children to children of a U.S. citizen, they would need to file new petitions, because there are no derivatives of immediate relatives, so it may have been better to file separate petitions from the beginning. As an example, we have seen a number of cases in which an adult U.S. citizen petitions for his parents and a sibling and they all apply for permanent residence at the same time. While correctly filing separate petitions, the parents’ cases get approved, and the sibling is denied and put into removal proceedings, because a sibling is subject to a long waiting line, and so didn’t qualify the same as the parents.
The Preference System refers to a system of categories or preferences that are subject to numerical restrictions on the number of visas available in each category per U.S. government fiscal year. When a petition is approved, it is assigned a Priority Date. The priority date is the date the petition was received, and represents the beneficiary’s “place in the line.” Cases are thus processed in chronological order as visa numbers become available. Each month the Department of State publishes the Visa Bulletin. The Visa Bulletin contains the priority dates for each category that are “current.” In other words, cases in that category with a priority date the same as or earlier than shown in the Visa Bulletin may now continue with processing the case.
NOTE: it is not valid to look at the dates in the Visa Bulletin and extrapolate that it will be approximately so many years before your case will be current! The priority dates do not advance month per month steadily. In fact, they can go many months or even years only advancing a few days or not at all, and, worse, rarely but on occasion, they actually retrogress (go backward)!
Also, note that although certain categories may be a higher preference category, upon looking at the Visa Bulletin, you may note that the dates in a “lower” category may be farther ahead, so whether one category is first preference or third preference isn’t as important as the dates.
This is general information and does not constitute legal advice; each case must be analyzed independently. Nothing here creates an attorney/client relationship; each potential client must set up an appointment for proper analysis, and written agreement if after a full analysis we both agree in writing that we accept to represent the case and you also agree that you want us to represent your case as detailed specifically in the written contract.
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