Family Based

Family Based Immigrant Visas include those immigrant petitions for permanent residency based on an immigrant’s family relationship with a United States citizen or permanent resident. The first step in the visa process is to have a sponsor (United States citizen or permanent resident) petition the United States Citizenship and Immigration Services (USCIS) to allow the beneficiary (the family member) to apply for an Immigrant Visa. After approval by the USCIS the petition is then sent on to the National Visa Center (NVC) for processing. The NVC will then provide instructions to the sponsor and beneficiary regarding forms, fees and other required documents to complete the application. The sponsor’s status determines which relatives are eligible to receive immigration benefits and how long the process will take.

Immediate Relative of a United States Citizen

An unlimited number of green cards are available for immediate relatives of United States citizens, which means that the family member does not need to wait in line for a visa. Immediate relatives of a United States Citizen include:

  • Spouses
  • Unmarried children under the age of 21
  • Parents

The application process for immediate relatives generally takes between 6-12 months.

Other Family Members of a United States Citizen

Other close family members of a United States citizen can qualify to immigrate to the United States. Unlike immediate relatives the visas allotted for these categories are subject to annual numerical limits. A visa becomes available to a preference category based on the date the application was filed. Close family members are divided into several groups called “Preferences”. The higher the Preference, the quicker the family member will be eligible to receive a green card. The preference categories for family members of United States citizens are:

  • First Preference: Unmarried sons or daughters over the age of 21
  • Second Preference: This category applies to family members of permanent residents (will be discussed in the following section)
  • Third Preference: Married children of any age
  • Fourth Preference: Brother and sisters (if United States citizen is over the age of 21)

The waiting time for family members falling into a preference category is approximately between 4 and 23 years. Waiting periods are set for each preference category according to country of birth and are released by the Department of State monthly in the Visa Bulletin.

Family Members of a Permanent Resident

A permanent resident may petition for a spouse and unmarried children to immigrate to the United States. Family members of permanent residents fall under the Second Preference category. The Second Preference is broken down into two categories. The categories for family members of permanent residents are:

  • Second Preference 2A: Spouses or unmarried children under the age of 21
  • Second Preference 2B: Unmarried children over the age of 21

The waiting time is approximately between 4 and 23 years. The annual visa allotment available for this category is 114,200, plus any visas not used by the First Preference. 77% of these visas go to the 2A subcategory and the other 23% go to the 2B subcategory.

Special Family Categories

Battered Spouse, Children, and Parents

A battered spouse, child, or parent may file an immigrant visa petition under the Immigration and Nationality Act (INA). There are provisions in the INA which allow certain spouses, children, and parents of United States citizens and certain spouses and children of permanent residents to file a petition for themselves without the abuser’s knowledge. This allows victims to seek both safety and independence without the abuser being notified about the filing. The provisions in the INA apply to both men and women.

Spouses
Abused spouses of United States citizens or permanent residents may file for themselves. They may also file if their children are being abused. Spouses may also include any unmarried children under the age of 21 in their petition. In order to be eligible to file spouses must meet several requirements:

  • The relationship must meet one of the following qualifications:
    • The spouse must be married to a United States citizen or permanent resident abuser, or
    • The marriage to the abuser was terminated by death or a divorce related to the abuse within the 2 years prior to filing, or
    • The abuser lost or renounced citizenship or permanent resident status within the 2 years prior to filing the petition due to an incident of domestic violence, or
    • The spouse believed that the marriage to the abuser was legal but it actually was not due to bigamy on the part of the abuser.
  • Either the spouse or a child suffered battery or extreme cruelty by the abuser
  • The spouse entered into the marriage in good faith and not for the sole purpose of obtaining immigration benefits
  • The spouse has resided with the abuser
  • The spouse has good moral character

Children
Children may file for themselves if they are unmarried and under the age of 21. Children between the ages of 21 and 25 may still file if the abuse caused a delay in filing. In order to qualify the child must:

  • Have a qualifying relationship:
    • The abuser is a parent who is a United States citizen or permanent resident, or
    • The abuser is a parent who lost citizenship or lawful permanent resident status due to an incident of domestic violence.
  • Have suffered battery or extreme cruelty by the abuser
  • Have resided with the abuser
  • Have good moral character (children under the age of 14 are presumed to have good moral character)

Parents
Parents may file if they have been abused by one of their United States citizen children. To file the parent must:

  • Have a relationship that qualifies under one of the following:
    • The abuser is at least 21 years of age, or
    • The abuser lost or renounced citizenship status related to an incident of domestic violence, or
    • The abuser was at least 21 years of age and died within 2 years prior to filing.
  • Have suffered battery or extreme cruelty by the abuser
  • Have resided with the abuser
  • Have good moral character
Children Born in the United States to Foreign Diplomats

A child born in the United States to a foreign diplomatic officer can not be considered a United States citizen at birth under the 14th Amendment to the United States Constitution. However, this child can be considered a permanent resident and receive a green card through creation of record. To be considered a foreign diplomatic officer the parent’s title must be listed in the State Department Diplomatic List. To be eligible to receive a green card through creation of record the child must meet all of the following conditions:

  • Born in the United States to a foreign diplomat
  • Resided continuously in the United States since birth
  • Never abandoned residence in the United States

The provisions of permanent residency will not apply until the child relinquishes his/her rights, privileges, exemptions, or immunities which are available as the child of a foreign diplomatic officer.

Widows or Widowers

To immigrate as the widow or widower of a citizen, you must prove that you were legally married to the citizen, and that you entered the marriage in good faith, not solely for the purpose of immigration. To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow or widower ends if you have remarried. If your citizen spouse did not have a Form I-130 pending at the time of death, you must file the Form I-360 no more than 2 years after the spouse’s death. Your unmarried children under the age of 21 may be included on your immigration petition.

You may be eligible to receive a green card as a widow or widower if you:

  • Were married to a U.S. citizen at the time he or she passed away
  • Either have a pending or approved Form I-130 or you have filed a Form I-360 within 2 years of your spouse’s death
  • Are not remarried
  • Were not divorced or legally separated from your spouse at the time he or she died
  • Are able to prove that you were in a bona fide marital relationship until the time of your spouse’s death
  • Are admissible to the United States

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This information is provided by the USCIS. For more information about the Immigration Process visit the USCIS website.