Practice Areas
- Removal Defense
- Asylum and Withholding of Removal
- Cancellation of Removal
- Adjustment of Status
- Immigration Detention and Bond
- Family-based Green Card
- Naturalization and Citizenship
- K-Visas
- Stay of Removal
- Green Card Renewal (I-90)
- Extension or Change of Nonimmigrant Status (I-539)
- Waivers of Inadmissibility
- Employment Authorization Document (EAD)
- Removal of Conditions (I-751)
- FOIA (USCIS / CBP / EOIR)
- ICE Check-in (Order of Supervision / Order of Release on Recognizance)
- VAWA
- U-Visa
- DACA
- DACA Temporary Protected Status (TPS)
- Motion to Reopen
- Appeals to the Board of Immigration Appeals (BIA)
Family-based Green Card
U.S. citizens and Lawful Permanent Residents (LPRs) are able to petition for certain family members to immigrate to the United States. The U.S. Citizen or LPR who files the petition is called the “petitioner”, and the family member they are petitioning for is called the “beneficiary.” Beneficiaries (depending on the type of family relationship) are classified into two groups: (1) immediate relatives, and (2) preference category-based relatives.
Only U.S. citizens are considered to have immediate relatives – spouses, parents, and unmarried children under the age of 21. Immediate relatives do not have to wait for a visa number in order to pursue their residency (“Green Card”) through either consular process abroad or through adjustment of status within the United States. Whether the beneficiary chooses to go through consular processing or through adjustment of status is usually (but not always) determined by where the beneficiary is residing at the time.
Preference category-based relatives, on the other hand, are issued a “priority date” upon the filing of the family based petition (Form I-130 Petition for Alien Relative), and the beneficiary will not have a visa number available until his or her priority date is current. The waiting time for visa availability depends on the beneficiary’s preference category and their country of citizenship, and it is not unusual for it to take several years for a visa number to become available.
Once a visa number is available for the beneficiary of an approved I-130 family-based petition (regardless of whether the person is an immediate relative or a preference category-based relative), a separate application for permanent residence must be made either through immigrant visa consular processing at a U.S. consulate abroad, or by the filing of an application for adjustment of status (Form I-485) in the United States.
In either scenario, the beneficiary (or applicant) must prove that he or she is not inadmissible (does not have immigration violations or convictions for certain crimes), and that they are deserving of a positive exercise of discretion to be allowed to immigrate to the United States.
U.S. citizens may petition for the following family members:
Immediate Relatives
- Spouses
- Parents
- Unmarried children under the age of 21
Preference category-based relatives
- Unmarried sons and daughters over the age of 21
- Married sons and daughters (any age)
- Siblings
Lawful Permanent Residents (LPRs) may petition for the following family members:
Preference category-based relatives
- Spouses
- Unmarried children under the age of 21
- Unmarried sons and daughters over the age of 21
Regardless of whether the beneficiary is undergoing consular processing abroad or applying for adjustment of status in the U.S., the petitioning U.S. citizen or LPR will also need to file an affidavit of support (Form I-864) in order to show that they have the financial means to support their immigrant relative and that the relative will not become a public charge in the U.S. The amount of minimum annual income that the petitioner must earn is determined by the U.S. Poverty Guidelines and depends on the number of persons living in the petitioner’s household. If the petitioner does not have sufficient income to meet the threshold, they may opt to obtain a joint sponsor. A joint sponsor is another person who voluntarily obligates themselves to financially answer for the beneficiary if the beneficiary becomes a public charge in the U.S. Joint sponsors do not need to be related to the petitioner, but they must:
- be either a U.S. citizen or LPR;
- show that they meet the income threshold as determined by the poverty guidelines;
- and sign their own Form I-864.
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