Family-Based Green Cards
Certain relatives of U.S. citizens and lawful permanent residents are eligible to become lawful permanent residents of the United States. The first step in the process is filing Form I-130 Petition for Alien Relative. If the petition is approved, the beneficiary applies for an immigrant visa abroad or a green card in the United States, depending on the circumstances and his or her eligibility.
Who can petition for an alien relative?
A U.S. citizen age 21 or older can petition for his or her:
• Children (any age; married or unmarried)
A lawful permanent resident (green card holder) can petition for his or her:
• Children under 21 years of age
• Unmarried sons and daughters, 21 years of age or older
Can I petition for a grandparent, cousin, nephew, or other relative not listed above?
No, you can petition only for the relatives listed above. However, other relatives may be able to immigrate as “derivatives” of a relative for whom you petitioned. For example, if you petitioned for a sibling, he or she may be able to bring his or her spouse and minor children as part of the case.
What is the difference between an immediate relative and a family preference immigrant?
Immediate relatives are:
• Spouses of U.S. citizens
• Parents of U.S. citizens
• Unmarried children under 21 years of age of U.S. citizens
Immediate relatives enjoy certain benefits that other alien relatives do not. First, immediate relatives do not have to wait for a visa number. This means that if an I-130 petition is approved, an immediate relative can immediately apply for an immigrant visa or green card (assuming they are otherwise eligible). In addition, immediate relatives are not subject to certain bars to adjustment of status (discussed below).
The remaining categories of alien relatives fall into the following family preference categories:
• First preference (F1) – unmarried sons and daughters, 21 years of age and older, of U.S. citizens
• Second preference (F2A) – spouses and children (unmarried and under 21 years of age) of lawful permanent residents
• Second preference (F2B) – unmarried sons and daughters, 21 years of age and older, of lawful permanent residents
• Third preference (F3) – married sons and daughters of U.S. citizens
• Fourth preference (F4) – siblings of U.S. citizens
Each category of family preference immigrants listed above has a limited number of visas available each year. Depending on how long the “line” is for a visa in a particular category, a family preference immigrant may have to wait for a visa number to become available once the I-130 petition is approved. Some categories have very long waits – sometimes many years. Sometimes, a family preference category is “current,” visas are currently available, in which case the family preference immigrant can immediately apply for an immigrant visa or green card (assuming they are otherwise eligible).
Each month, the Department of State publishes a Visa Bulletin, which indicates whether visas are available in each family preference category. Visa availability changes over time depending on how many visas are issued and how many new petitions are filed in each category. You can view the Visa Bulletin here: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
The I-130 petition I filed for my relative was approved. What’s next?
Approval of an I-130 petition is only step one. Following an I-130 petition approval, the next step depends on a few factors, including whether your relative is in the U.S. or abroad and whether a visa number is available. If your relative is in the U.S. and eligible to adjust status (apply for a green card), and if a visa number is available, then he or she may apply for adjustment of status. If your relative is abroad, or if he or she is in the U.S. but is not eligible to adjust status, he or she may be eligible to consular process (apply for an immigrant visa).
What if my I-130 petition was approved but there is no visa number available for my relative?
If your relative will eventually be applying an immigrant visa, USCIS will send the approved I-130 petition to the National Visa Center (NVC) for further processing. If you have an approved petition at the NVC, it is critical that you keep in touch with NVC at least once per year until your relative obtains an immigrant visa or green card. Otherwise, the approved I-130 petition could be terminated and you will have to start the process over.
If your relative is in one of the family preference categories and has a long wait for a visa number, you will have to keep in touch with NVC for a long time – sometimes many years – until a visa becomes available and your relative can proceed with his or her case. Make sure to keep your mailing address, email address, and other contact information updated with USCIS and NVC, to ensure that you receive all notices relating to the case. You can find NVC’s contact information here: https://travel.state.gov/content/travel/en/contact-us/us-visas.html
Adjustment of Status & Consular Processing
Some individuals who are in the U.S. are eligible to apply for a green card without leaving the country, either following an I-130 petition approval or in conjunction with an I-130 petition filing. This process is known as “adjustment of status.”
In order to be eligible for adjustment of status, a person must meet several requirements. First, there must be a visa number available. Immediate relatives always have a visa number available, while people in preference categories might have to wait, depending on visa availability in the particular category.
In addition, generally speaking, a person must have been “inspected and admitted” or “paroled” (meaning they entered the country lawfully) in order to apply for adjustment of status. However, there are some exceptions.
In addition, a person must be “admissible” to the United States, meaning they are not subject to any grounds of inadmissibility set forth in the immigration laws. There are many bars, discussed below.
Can someone who entered the United States illegally apply for a green card in the U.S.?
Section 245(i) of the Immigration and Nationality Act allows certain people to adjust status despite having entered the U.S. illegally. These people are “grandfathered” under a law called The Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000.
To qualify, you must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130 Petition for Alien Relative or Form I-140 Immigrant Petition for Alien Worker) filed on or before April 30, 2001. The petition must have been properly filed and “approvable when filed” (meaning it was meritorious and not frivolous).
If you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001, you must show that you were physically present in the United States on December 21, 2000.
In some cases, the spouse and children of a “grandfathered” person may also eligible to adjust status.
What if I entered the U.S. through a Port of Entry but I didn’t have any documents, or I used a fraudulent document?
If you entered the U.S. by passing through a Port of Entry without any documents (for example, as a passenger in a car that was “waived through” by an immigration official, then you were admitted to the U.S. and may be eligible to adjust status. If you entered the U.S. by presenting a fraudulent document (such as a doctored visa or passport) to immigration officials, then you were admitted to the country and may be eligible to adjust status.
In these types of cases, it can be very difficult to prove how you entered the country and, therefore, it can be difficult to prove that you are eligible to adjust status. Additionally, if you entered the country using fraudulent documents, you may be inadmissible for misrepresentation and may need a waiver of inadmissibility. It is wise to consult an experience immigration attorney to determine whether you qualify and, if you do, how you can prove it to immigration officials. Contact our office in Ormond Beach, Volusia County for a consultation.
What if I am not eligible to adjust status?
For those who are not eligible to adjust status, consular processing may be an option. In this process, a person applies for an immigrant visa at a U.S. consulate abroad. If the immigrant visa is granted, the person receives a green card after entering the U.S with the visa.
Bars to becoming a permanent resident of the United States
The immigration laws set forth many grounds on which an immigration official can deny a person adjustment of status or an immigrant visa.
With the exception of immediate relatives (spouses, parents, and children under age 21 of U.S. citizens) or people “grandfathered” as discussed above, individuals who have failed to maintain a lawful status in the U.S. or who have worked without authorization cannot adjust status. They may be eligible to obtain a green card through consular processing (applying for an immigrant visa) instead of adjustment of status (applying for a green card in the U.S.).
There are many other bars that can prevent some from adjusting status or obtaining an immigrant visa. There are bars for people who have been convicted of, or who have committed or admitted to committing certain crimes. There are bars for people who have lied or made misrepresentations to obtain immigration benefits. There are bars for certain mental and medical conditions. There are bars for having been unlawfully present in the United States and for having been deported from the country. There are also many other bars.
If you apply for a green card when you are not eligible, your application will be denied and you might find yourself in removal proceedings (with the government trying to have you deported from the country). If you depart the United States to apply for an immigration visa when you are not eligible for an immigrant visa, you might find yourself stuck outside the United States. To avoid such situations, you should consult with an experienced immigration attorney before you apply.
Waivers of inadmissibility
Waivers are available for many of the grounds of inadmissibility. For example, there are waivers for misrepresentation, for being unlawfully present in the U.S., and for certain crimes. The waiver requirements differ depending on the ground of inadmissibility for which you seek a waiver. Some waivers require a showing that certain “qualifying relatives” would suffer extreme hardship if you were not able to become a permanent resident.