Family-based Immigration

Immediate relatives of U.S. citizens fall under three categories, namely;

• Spouses of U.S citizens
• Parents of U.S citizens
• Children of U.S. citizens under the age of 21 years)

This category is considered a “preferred” category, and visas are readily available.

A foreign national who marries a United States citizen can obtain permanent resident status. There are three important criteria in this vein.
First, the marriage must have been legally valid at the time it was performed; this means it must have satisfied all the legal requirements of a valid marriage. Secondly, the marriage must still exist when the foreign national seeks permanent resident status (which does not mean that the parties must be living together). A marriage may be “viable” even though the parties are separated. Third, the marriage must have been entered into “good faith.” This means that the marriage was not entered into solely to obtain immigration benefits. USCIS generally scrutinizes marriage petitions to determine whether the marriage is a good faith marriage. Many factors can trigger suspicion regarding the good faith of the marriage. For example, the couple has not known each other for a long time, the couple has only seen each other a few times before the marriage, the couple does not presently reside together or has never lived together, and the couple got married while the foreign national was in immigration proceedings

If the parties were married for less than two years when the immigrant was granted permanent resident status, they would be granted only a conditional permanent resident status. However, with this conditional status, the immigrant is entitled to all of the benefits of being a permanent resident. These include eligibility for employment authorization, ability to travel in and out of the U.S., and the time in this status counts towards the residency requirement for naturalization. Two years after the conditional residence, the immigrant must file a petition to remove the condition. If they fail to do so, the conditional residence status will be lost.

Under certain circumstances, spouses of deceased citizens would qualify as immediate relatives, and petitions can be filed for them to become permanent residents. These widows or widowers are eligible if four conditions are met. First, the widow(er) must have been married to a U.S. citizen at the time of his or her death. Second, parties must not have separated before the U.S. citizen’s death. Third, the widow(er) must not have remarried. Fourth, the petition is filed within two years of the U.S. citizen’s death. If the widow(er) has unmarried minor children, they may be included in the petition. This petition is filed using Form I-360 instead of the regular Form I-130.

Under the Violence Against Women Act (VAWA), Congress created a class of spouses who are children of U.S. Citizens and permanent residents who have been “battered.” The benefit of this provision, the immigrant must have been in a good faith marriage with the U.S. citizen or permanent resident, must have resided with the U.S. citizen or permanent resident in the United States, must have been battered or subjected to “extreme cruelty,” and must be a person of “good moral character.”

Children of U.S. citizens under the age of 21 who are unmarried are considered immediate relatives. Either citizen parent can petition for a child born in wedlock (while the parents are married). Citizen mothers can also petition for children born out of wedlock. A citizen father can only petition for his child who was born out of wedlock only if the child was legitimated before the age of 18 (i.e., the father and the child’s mother got married), the child is in the legal custody of the citizen father, or the citizen father has a bona fide parent-child relationship with the child. For stepchildren to qualify as immediate relatives, the step relationship must have existed before the child turned 18. Adopted children would be considered immediate relatives if the adoptive relationship existed before the child turned 16 years of age and other procedural requirements are met. Certain orphans abroad and children adopted abroad can be classed as immediate relatives. This is made possible by the Hague Convention on Protection of children and Co-operation concerning Intercountry Adoption (Hague Convention) of which the U.S. is a signatory. For a child to qualify as a Hague Convention adoptee, the following conditions must be met:

• The child must be residing in a country that is a party to the Convention
• The child must be under the age of 16 years when the petition is filed,
• The child must have two living parents who are incapable of taking care of the child or one living parent because of the death, disappearance, desertion, or abandonment of the other parent or
  the other parent, or a legal custodian or guardian other than the birth parents.
• The parent(s), legal guardians, or institution freely give their written, irrevocable consent to terminate their legal relationship with the child and allow the child to be adopted and emigrate
  at least one of the adoptive parents must be a U.S. Citizen. If married, the parents must adopt the child jointly, and must be suitable for adoption.
• The child must have been fully and finally adopted according to the laws of the foreign residential country.

The parents of a U.S. citizen are considered their immediate relative if he or she is 21 years of age or older. The same legal analysis used to determine who is a child for immigration purposes can be used to determine who is a parent for immigration purposes.

Other groups of family members of U.S. citizens can immigrate to the United States but are not considered “preferred” immigrants. These are divided into “preference” categories as follows:

• Adult, unmarried sons, and daughters of U.S. citizens (family first preference-F1
• Spouses and children of permanent residents (family second preference-F2A)
• Adult, unmarried sons, and daughters of permanent residents (second preference -F2B)
• Adult, married sons, and daughters of citizens (family third preference-F3)
• Brothers and sisters of citizens (family fourth preference-F4)

Visas for these categories of prospective immigrants a not readily available as there is a waiting list. A visa for any of the categories becomes available depending on the “priority date.”