Green Card Eligibility and Process: Family Petitions

U.S. Citizens and Lawful Permanent Residents may petition for certain family members to immigrate to the U.S. and obtain permanent residence. If approved, the permanent resident receives a Green Card, which is effectively proof of permanent resident status.

In order to qualify, the intended immigrants must meet three (3) criteria: eligibility, visa availability, and admissibility. This article will describe each of the three criteria and how the family application process works.

Green Card Eligibility

Green Card Eligibility is met by showing that the intended immigrant is in one of the family categories covered under the Immigration and Nationality Act (INA). The INA establishes the following family-based categories:

• Immediate Relatives - Spouse or unmarried minor child (under the age of 21) of a U.S. Citizen; parents of a U.S. Citizen may also be included only if the U.S. Citizen Petitioner is already 21 years old
• Family Preference 1 (F1) – unmarried adult son or daughter (over age 21) of U.S. Citizens
• Family Preference 2A (F2A) – spouse and unmarried minor child (under the age of 21) of a Permanent Resident
• Family Preference 2B (F2B) – unmarried adult sons or daughters of a Permanent Resident
• Family Preference 3 (F3) – married adult sons or daughters of U.S. Citizens
• Family Preference 4 (F4) – brothers or sisters of U.S. citizens
  

In addition to the Immediate Relatives and Family Preference classifications, current U.S. immigration law also allows foreign nationals to immigrate through special family categories, such as the K-1 fiancé(e) visa.

Visa Availability

Current U.S. laws limit the number of immigrant visas that may be issued each year in certain family categories. Individuals classified as Immediate Relatives are not subject to the annual numerical limitations for family members. Therefore, there is no limit to the immigrant visas (or green cards) that the U.S. Government may approve each year for Immediate Relatives. 

However, the four Family Preference categories are subject to the numerical limit. If an immigrant visa is not immediately available for a particular category, the beneficiary’s case remains pending with the U.S. Government until an immigrant visa becomes available. Depending on the category and the beneficiary’s country of origin, the visa wait can be a few months or several years.

Immigrant Admissibility

Under current U.S. law, there are several factors that can have a negative impact on a permanent residence case, including, but not limited to:

• prior immigration law violations
• false claims to U.S. Citizenship
• prior attempts to obtain an immigration benefit through misrepresentation or fraud
• certain health conditions
• certain criminal convictions
• security-related grounds
• and the likelihood of the immigrant becoming a public charge, among others.
  

These factors are generally known as grounds of inadmissibility, because they usually prevent applicants from obtaining permanent residence or from being admitted into the U.S. Some, but not all, of the inadmissibility grounds may be resolved by obtaining a waiver of inadmissibility. Each type of inadmissibility ground has several variable factors, so a full case analysis must be conducted in order to properly assess whether the individual is subject to a ground of inadmissibility and, if so, whether a waiver is available.

Family Petition Green Card Application Process

Whether you are seeking a K-1 fiance(e) visa, a green card through marriage to a U.S. Citizen or Permanent Resident, as an immediate relative or as a member of any of the four family preference categories, the case will have to go through a multi-step application process.  The applications go through the U.S. Citizenship and Immigration Services (USCIS) and, in some cases, through the U.S. Department of State.

For K-1 fiancé(e) visas, the process begins with an I-129F Petition for Alien Fiancé(e) filed by the U.S. citizen petitioner with USCIS.  If the I-129F Petition is approved by USCIS, the case is then forwarded to the U.S. Consulate in the beneficiary’s home country.  The beneficiary must then submit the actual K-1 visa application with the U.S. Department of State and go through background checks, a medical examination and an in-person interview with the consular officer. If successful, the beneficiary will be issued the K-1 visa for travel to the U.S.  Once admitted to the U.S. in K-1 status, the beneficiary has 90 days to marry the U.S. citizen petitioner and file for permanent residence with USCIS.

In the case of immediate relatives or preference categories, the case generally begins by filing an I-130 Petition for Alien Relative, also with USCIS. The rest of the application process involves the immigrant’s application for permanent residence, either as an adjustment of status with USCIS, or through consular processing with the U.S. Department of State, depending on the case.  Choosing between adjustment of status and consular processing often involves a legal and strategic analysis that takes into consideration the following factors:

• the beneficiary’s immigration history and status in the U.S. if already present in America
• whether the beneficiary can be classified as an Immediate Relative or falls within a Family Preference category
• whether the beneficiary is subject to any grounds of inadmissibility for which a waiver is available
• the intending immigrant’s need to work and/or travel internationally while the case is pending.
  

It is very important to know what application type must be filed, and with which federal agency.  Filing the wrong application (or an incomplete application) may have negative consequences. For instance, filing an immigration application without meeting all qualifying criteria can lead to the application being denied and, depending on the circumstances, may trigger removal (deportation) proceedings for those who are already in the U.S.

Even if removal proceedings are not triggered, filing the wrong application could still prove to be a waste of time and money. Each application process has various government filing fees that are usually non-refundable. In addition, each step in the application process may take several months or several years, which means it usually takes a long time to find out if the application is approved or denied.

Another factor to consider is that some immigration applications may provide temporary employment and travel authorization while the permanent residence case is pending. Therefore, it is important to know the full details of the application process that applies to each particular case, to find out if the applicant are eligible for temporary immigration benefits while waiting for the green card case to be processed.

Our office can help you navigate the immigration maze. We provide clear and detailed guidance to our clients regarding the documents and evidence required in support of their case, and we provide legal representation before the government agencies involved in the immigration process.  If you would like to consult with an immigration attorney to determine your options, please contact Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittllp.com.