An individual may obtain lawful permanent resident status in the United States through certain relatives who are either US citizens or lawful permanent residents. It is important to note that Lawful Permanent Residence does not automatically grant U.S. citizenship. Also permanent residence can be considered abandoned if the individual spends an extended time outside the U.S., and permanent residents can be deported if subject to a specific ground of deportation such as the commission of a drug offense.
Immediate Relative
The Term “Immediate Relative” includes spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older.
For immediate relatives of U.S. citizens, visas are always available, which means that your family member does not need to wait in line for a visa.
Preference Categories
There are Four Preference Categories for Limited Family-Based Immigration:
- First Preference — Unmarried sons and daughters (children who are 21 years or older) of U.S. citizens.
- Second Preference — (A) Spouses and unmarried children (under the age of 21 years) of lawful permanent residents of the U.S.; and (B) unmarried sons and daughters (21+ year old children) of U.S. lawful permanent residents.
- Third Preference — Married sons and daughters of U.S. citizens.
- Fourth Preference — Brothers and Sisters of U.S. citizens.
The U.S. citizen or permanent resident relative will first submit an I-130 Immigrant Petition with the immigration’s Regional Service Center with jurisdiction over the petitioner’s residence. The petition packet must include proof of the petitioner’s status as a U.S. citizen or permanent resident, along with proof of the claimed relationship to the beneficiary. Upon approval of this petition, the file will be sent to the U.S. Department of State’s National Visa Center, who will determine if an immigrant visa is currently available for the beneficiary based on the preference category and priority date assigned (date that the petition was received by the immigration service). When a number becomes available, the NVC will initiate the immigrant visa application process for the beneficiary through the appropriate U.S. Embassy or Consulate. Certain immediate relatives who are already in the U.S. may apply for adjustment of their status to permanent residence concurrently with the filing of the immigrant petition.
If your relative is already in the United States, he or she may apply to adjust status to become a green card holder (permanent resident) after a visa number becomes available using Form I-485.
If your relative is outside the United States, your petition will be sent to the National Visa Center (NVC). The NVC will forward your petition to the appropriate U.S. consulate when a visa becomes available and your relative will be notified about how to proceed. This process is referred to as “Consular Processing.”
Your family member’s preference category will determine how long he or she will have to wait for an immigrant visa number. Once you have filed a petition, you may check the progress of your case on the USCIS website under “Case Status.” You may check visa availability information using the Visa Bulletin at http://travel.state.gov/visa/bulletin/bulletin_1360.html.
Fiancé(e) Visa
The K-1 Visa is for the fiancé(e) of a U.S. citizen who seeks to enter the U.S. for the sole purpose of marrying the U.S. citizen petitioner. Upon entry, the couple must marry within 90 days. The foreign national may then apply for adjustment of status to U.S. permanent resident. Minor children of the fiancé(e) may accompany him or her with a K-2 visa. Both K-1 and K-2 nonimmigrants are authorized to work in the U.S.
The U.S. citizen files an I-129F petition with the U.S. Citizenship & Immigration Services with proof that they have a bona fide intention to marry within 90 days of the fiancé(e)’s entry; that there are no legal impediments to the marriage; and that the couple has previously met in person within two years of filing the petition. The criminal record, if any, of the USC petitioner must also be submitted where he or she was convicted of any of the following crimes:
- Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.
- Homicide, murder, manslaughter, rape, abusive sexual assault, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes.
- Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act.
Once the petition is approved by USCIS, it is valid for four months, and can be re-validated for 4-month periods. The approved petition is first sent to the U.S. Department of State’s National Visa Center in the U.S., and then on to the U.S. Embassy or Consulate where the foreign national is scheduled to appear for interview and issuance of the visa.
The K-3 Visa is for a foreign national who has a valid marriage to a U.S. citizen who has filed an I-130 immigrant petition with USCIS on the foreign national’s behalf, and the foreign national seeks to enter the U.S. to await the approval of the immigrant petition. The minor child/ren of the foreign national spouse may be issued a K-4 visa. K-3/K-4 nonimmigrants are admitted for two years initially (with one extension possible) and are eligible to apply for employment authorization. Once the I-130 is approved, the foreign national beneficiary may apply for adjustment of status with USCIS or for an immigrant visa with the U.S. Embassy/Consulate.
The U.S. citizen files an I-129F petition with USCIS, along with proof that the I-130 has been filed with USCIS. The same criminal record documents mentioned above must also be submitted if applicable. Once approved, the petition is sent to the National Visa Center for processing of the criminal background check on the foreign national, and then to the U.S. Embassy/Consulate for processing of the K-3 visa. However, if the I-130 has already been approved and sent to the U.S. Embassy/Consulate, then the K-3 will not be issued and instead the immigrant visa will be processed there.
Battered Spouse, Parent or Child (VAWA)
As a battered spouse, child or parent, you may file an immigrant visa petition under the Violence against Women Act (VAWA). VAWA allows certain spouses, children and parents of U.S. citizens and permanent residents (green card holders) to file a petition for themselves without the abuser’s knowledge. This will allow you to seek both safety and independence from the abuser. The provisions of VAWA apply equally to women and men. Your abuser will not be notified that you have filed for immigration benefits under VAWA.
Those Eligible to File:
Spouse: You may file for yourself if you are, or were, the abused spouse of a U.S. citizen or permanent resident. You may also include on your petition your unmarried children who are under 21 if they have not filed for themselves.
Parent: You may file for yourself if you are the parent of a child who has been abused by your U.S. citizen or permanent resident spouse. You may include on your petition your children, including those who have not been abused, if they have not filed for themselves. You may also file if you are the parent of a U.S. citizen, and you have been abused by your U.S. citizen son or daughter.
Child: You may file for yourself if you are an abused child under 21, unmarried and have been abused by your U.S. citizen or permanent resident parent. Your children may also be included on your petition. You may file for yourself as a child after age 21 but before age 25 if you can demonstrate that the abuse was the main reason for the delay in filing.