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One way to gain lawful permanent residency in the United States is through a family-based sponsorship. The U.S. immigration laws allow both United States citizens and permanent residents to sponsor certain immediate family members to work and live in the U.S legally. However, the eligibility for family-based sponsorships and requirements heavily depends on many factors that an experienced immigration attorney can assist with.

Who is Eligible for Family-Based Petition?

In order to determine a family member’s eligibility for the petition, it is vital to determine the following two factors:

  • The current legal status of the sponsor, whether they are a lawful permanent resident (green card holder) or a United States citizen; and
  • The relationship of the foreign national to be petitioned to the sponsor.

These two factors are essential because they would determine whether a family-based sponsorship is available to the case since the eligibility, timeline, and requirements of certain family members are different for a United States citizen sponsor from a Permanent Resident’s (green card holder).

Which Family Members of United States Citizens are Eligible for a Family-Based Sponsorship?

United States citizens can file for family-based sponsorship for permanent residency (green card) for the following relatives:

  • Spouse;
  • Unmarried children and under the age of 21;
  • Children who are either married or aged 21 and above;
  • Parents, if the U.S. citizen sponsor is aged 21 or over; and
  • Sibling, if the U.S. citizen sponsor is aged 21 or over.

A U.S. citizen’s spouse, parents, and unmarried children under the age of 21 are considered immediate relatives. Typically, visas are immediately available for these particular relatives, so a Form I-485 can be filed simultaneously that their Form I-130 is filed.

However, other family members are classified under immigration law in preference categories. These categories’ visa allocation is subject to annual limits.

The preference categories are as follows:

  • First Preference: Unmarried children age 21 or older of U.S. citizens
  • Second Preference: Unmarried children age 21 or older of permanent residents (green card holder)
  • Third Preference: Married children of permanent residents (green card holder)
  • Fourth Preference: Siblings of adult U.S. citizens

Moreover, U.S. citizens may also file for a family-based sponsorship for a Fiance (Fiancee) visa (K-3/K4) for their foreign national fiance/fiancee and the fiance/fiancee’s children under the age of 21.

What is the Process for Petitioning Eligible Family Members of a United States Citizen?

In order to petition for an eligible family member for permanent residency (green card), the U.S. citizen sponsor must file Form I-130, Petition for Alien Relative, for each family member.

If the foreign national relative is already in the United States and is considered immediate relative, Form I-130 can also be filed with an application for Permanent Residence by filing Form I-485, Application to Register Permanent Residence or Adjust Status. However, those listed in one of the preference categories above are subject to the timeline and limits set by USCIS on when a visa will be available for them.

However, if the foreign national relative is outside of the United States, then the petition will be sent to the National Visa Center (NVC) upon the petition’s approval. The NVC will then forward the petition to the U.S. consulate of the country where the sponsored relative is located. The relative will then be notified of the next steps to the process when a visa becomes available. Similar to the process above, immediate relatives of a U.S. citizen will likely have a visa readily available for them, but those listed in the preference categories are subject to waiting and availability set by the USCIS.

Which Family Members of Permanent Residents (Green Card Holders) are Eligible for a Family-Based Petition?

A United States permanent resident (or green card holder) may also file for family-based sponsorship for permanent residency (green card) for certain family members. Such relatives include:

  • Spouse;
  • Unmarried children under the age of 21;
  • Unmarried children age 21 or older.

Similar to U.S. citizens, spouses and unmarried children under the age of 21 of lawful permanent residents are classified as immediate relatives and subject to immediate visa availability.

However, as discussed above, unmarried children age 21 and older of permanent residents are classified under Second Preference and are subject to annual limits.

What is the Process for Petitioning Eligible Family Members of a Permanent Resident?

To initiate the process for permanent residency for an eligible member of a lawful permanent resident (green card holder), the sponsor must file for Form I-130, Petition for Alien Relative.

Upon the petition’s approval, the Department of State will then determine if an immigrant visa is available to the beneficiary. Immediate relatives are almost always available. If the immediate relative is already in the U.S, they may be able to file Form I-485 when they filed for Form I-130.

However, relatives that fall under one of the preference categories listed above are subject to the timeline and visa availability set by the USCIS.

However, if the applicant is located outside of the United States, then the petition will be referred to the NVC, who will then forward the petition to the U.S. Consulate where the foreign relative being sponsored is located. Similar to the process above, an immediate family member will likely have a visa available to them. In contrast, relatives under the preference categories are subject to the timeline and visa availability set by the USCIS.

Are Same-Sex Spouses Eligible for Family-Based Sponsorship

Yes

A United States citizen and a lawful permanent resident (green card holders) in a same-sex marriage to a foreign national can file for permanent residency (green card) for their spouse under family-based sponsorship.

If you seek to sponsor a family member for permanent residency through your legal immigration status in the United States, please call our office at (225) 963-9638, or you can go to our website www.messerfirm.com to arrange to speak with an experienced immigration attorney about your case.