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Family Immigration Process Overview

Family immigration is limited by The Immigration and Nationality Act (INA) which caps the total number of foreign nationals allowed to immigrate to the U.S. The U.S. Department of State (DOS) allocates the number of these immigrant visas available to each country.  U.S. Citizenship and Immigration Services (USCIS) then determines the eligibility of family immigration petitioners for family-based visas.

The paperwork involved with a family immigration petition is daunting. Trying to prepare your family-based immigration petition yourself is possible, but you should expect multiple delays and denials before your petition is approved. Working with an experienced, reputable immigration attorney is the best way to ensure your family immigration petition is done right and is approved as fast as possible. You should never work with a disreputable or unlicensed person claiming to be able to help you with your family petition.

At Andres Mejer Law, we frequently have clients come in who tried to save a little money by going to a New Jersey family immigration lawyer, travel agent or notario before coming to us. They soon find out that they could have spent less money and gotten a better result by coming to us in the first place. Don’t fall victim to a scammer, contact Andres Mejer Law today.

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The Family Immigration Petitioner

A family-based immigration petition starts with the “Petitioner” who must be a U.S. Citizen or Lawful Permanent Resident (Green Card holder). The petitioner must petition for and agree to sponsor their family member. The petitioner must meet certain other qualifications such as a minimum income level, but we will talk more about that later.

The Family-Based Immigration Beneficiary

When a family immigration petition is submitted, the petitioner names a “Beneficiary”. The beneficiary must be a family member of the petitioner such as their parents, husband, wife, son or daughter. Depending on the immigration category, the beneficiary may have family members who are eligible to immigrate with them as well.

Immediate Relative Category

The immediate relative category is one of two family-based immigration categories. There are only a few visa types available under this category. Only U.S. Citizens are permitted to petition for beneficiaries under this category, but green card holders may petition for beneficiaries under other family immigration categories.

There are some big benefits under the immediate relative immigration category. The benefits include:

  • Special priority
  • No waiting period
  • No cap on the total number of visas available

To be eligible for a family immigration petition under the immediate relative category, you must be one of the following:

  • Spouse of a U.S. citizen
  • Unmarried child (under 21 years of age) of a U.S. citizen
  • Orphan adopted abroad by a U.S. citizen
  • Orphan to be adopted in the United States by a U.S. citizen
  • Parent of a U.S. citizen (who is at least 21 years old)

Family Immigration Preference Categories

U.S. Citizens and green card holders may petition for certain family members under the family immigration preference categories. The total number of immigrants allowed to immigrate to the U.S. under the family preference category is limited each year. Many more people petition under this category than there are visas available. This causes a huge backlog of pending petitions for many countries, creating a long wait for immigrants before they may legally enter the United States. Family immigrants from counties like Mexico and the Philippines may have to wait up to 20 years before receiving their green card.

The family preference categories include:

  • Unmarried, adult sons and daughters (age 21 or over) of U.S. citizens
  • Spouses and unmarried children (under age 21) of permanent residents
  • Unmarried adult sons and daughters of permanent residents
  • Married sons and daughters (any age) of U.S. citizens
  • Brothers and sisters of adult U.S. citizens

Grandparents, grandchildren, nephews, nieces, uncles, aunts, cousins and in-laws cannot be directly petitioned.

The Visa Bulletin

Green cards are issued to petitioners based on the visa category, the number of visa numbers available for their home country, and a first-come, first served basis. Here we want to emphasize the importance of properly completing your Form I-130 petition and related documents. A rejection may mean a return to the back of the line.

When the day comes, and your Form I-130 petition is granted, if you are in a family preference category, it doesn’t mean you can travel to the United States legally. In fact, receiving notice that your I-130 petition has been approved simply means that you have a place in line, but your visa number is not available yet.

Your approval date becomes your “priority date”, which is how the U.S. State Department tracks the processing and issuance of visa numbers. The U.S. Department of State publishes the current priority date for each country and family preference category every month. When your priority date appears on their list (become current), then you may apply for your green card. In most cases, you can expect a wait from several months to several years before your priority date becomes current.

The Family-Based Immigration Petition

The primary form used in the family immigration process is Form I-130, Petition for Alien Relative. There are a number of other forms and attachments that go along with the I-130 form that are required to prove the petitioner’s ability and eligibility to sponsor their family member in addition to establishing the required family relationship. Typically, the family-based immigration petition is initiated in the United States by a U.S. Citizen or a qualified legal permanent resident. The Form I-130 is the first step in requesting a visa number and eventually a green card for your family member.

Note: Keep in mind that this is but one leg of your journey through the process and, while is sounds easy enough here, the journey is fraught with potential problems, pitfalls, and roadblocks that can slowly and painfully lead you to a delay or denial of your I-130 family-based immigration petition.

In the case of a U.S. Citizen sponsoring their future husband or wife, the process is initiated by filing Form I-129F, Petition for Alien Fiancé. If approved, your spouse would receive a K-1 fiancé visa that will permit them to travel to the United States to get married.

After Form I-130 Has Been Filed

Assuming that Form I-130 was completed correctly and filed at the correct processing center, the USCIS will send you a confirmation of receipt of the form in about 3 weeks.  The confirmation is sent using Form I-797C, Notice of Action. This notice does mean that your petition was approved, only that the USCIS received it.  Many Form I-130 petitions that are prepared by non-attorneys are rejected because it was filled out incorrectly or it did not have the many other required documents with it. If the Form I-130 petition is rejected, the USCIS will send you the same Notice of Action form as above, but it will state that the I-130 form was rejected, or it may request additional evidence. Sometimes the rejection will come with very little explanation as to why it was rejected, which means, if you filed it yourself, you must now figure determine the problem and fix it yourself. You would be far better off seeking the advice of an experienced immigration attorney because now you are going to experience a significant delay in processing your Form I-130.

Consular Processing

If the family member is outside of the United States, they would need to go to the U.S. Embassy or Consulate in their home country. There, they will need to complete the process for a green card application and receive their visa stamp before being able to enter the U.S.

Adjustment of Status

If your family member is already in the United States legally, they may apply for an Adjustment of Status. Usually, when this applies, the family member entered the U.S. legally on a nonimmigrant visa such as a student visa or fiancé visa. Adjustment of status is the process that a nonimmigrant uses to change status to a legal permanent resident while in the U.S., but again, it requires that they enter the country lawfully in the first place and it is only available to a limited number of visa types. If your family member does not qualify to adjust their status in the U.S., they must leave the country and apply for a green card at the consulate in their home country.

Becoming a U.S. Citizen

After you have your green card, the next step is to become a United States Citizen. Becoming a citizen gives you a number of rights and privileges that you do not get as a legal permanent resident. Among those is the right to vote. Another benefit to many immigrants is, that as a U.S. Citizen, you can petition for immediate family members to immigrate to the United States without being subject to family-based preference categories.

Will President Trump End Chain Migration?

Chain migration or chain immigration is exactly what we have been discussing for last 1,500 words. In it’s simplest terms, chain immigration is the process by which a legal immigrant in the United States may petition for a relative to immigrate to the U.S. Then, that relative petitions for one of their relatives to immigrate to the U.S. and so on, forming a chain of immigrants. Chain migration does not require the immigrant to have any skill or education. Chain immigration’s primary requirement is a family relationship. President Trump has suggested terminating chain migration and replacing it with a merit-based immigration system. However, the likelihood of President Trump being successful is less than slim. Even if President Trump succeeds in changing the chain immigration laws, it would likely be decades before it would go into effect. Your best defense against President Trump’s immigration policies may be Andres Mejer Law. We fight for the rights of immigrants.

Do You Need Help?

Are you planning to file a Form I-130 petition in the near future? If yes, give us a call and schedule a consultation. We can evaluate your situation and help you to formulate an immigration plan that could reunite you with your family in the shortest possible amount of time. Don’t go it alone. We are here to help.

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